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Kr N / 74.34/ . A2 /N G7 



RECEIVED 

SEP 3 1993 
LAW LIBRARY 



The 
NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



rSORTH ( 



TITl 



EXECUTIVE ORDERS 

IN ADDITION 
EHNR 
Final Decision Letters 

PROPOSED RULES 

Cosmetic Art lisaminers 

Environment, Health, and Natural Resources 

Human Resources 

Justice 

Labor 

Mortuary Science 

State Personnel 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: September 1, 1993 
Volume 8 • Issue 11 • Pages 876 - 1006 



NORTH CAROLINA REGISTER 

Publication Schedule 

(July 1993 - May 1994) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 
from 
notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


8:7 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


08/02/93 


08/20/93 


10/01/93 


8:8 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/16/93 


08/20/93 


10/01/93 


8:9 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


8:10 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


8:11 


09/01/93 


08/11/93 


08/18/93 


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10/01/93 


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12/01/93 


8:12 


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09/30/93 


10/15/93 


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12/01/93 


8:13 


10/01/93 


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10/18/93 


11/01/93 


11/22/93 


01/04/94 


8:14 


10/15/93 


09/24/93 


10/01/93 


11/01/93 


11/15/93 


11/22/93 


01/04/94 


8:15 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


8:16 


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10/22/93 


10/29/93 


11/30/93 


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02/01/94 


8:17 


12/01/93 


11/05/93 


11/15/93 


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01/03/94 


01/20/94 


03/01/94 


8:18 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 


8:19 


01/03/94 


12/08/93 


12/15/93 


01/18/94 


02/02/94 


02/21/94 


04/01/94 


8:20 


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8:21 


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8:23 


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8:24 


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9:1 


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07/01/94 


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07/01/94 


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06/20/94 


08/01/94 



Note: Time is computed according to the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 15OB-21.20 for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the nde at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 07/93 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 21 

LOCAL GOVERNMENT PARTNERSfflP 

COUNCIL 

WHEREAS, units of local government are 
political subdivisions of the State of North Caroli- 
na and the State is obligated to provide support to 
these units; and 

WHEREAS, the Governor recognizes the need to 
improve and strengthen the relationship between 
state, county, and municipal governments; and 

WHEREAS, the Governor desires to identify and 
implement strategies that will enable the adminis- 
tration, the General Assembly and local govern- 
ments to work together for the benefit of the entire 
State; and 

WHEREAS, the Governor recognizes the current 
problems facing local governments and pledges to 
work in cooperation with local officials to find 
appropriate solutions; and 

WHEREAS, the Governor appreciates the vital 
role that local governments can and should play in 
the future growth and development of the entire 
state; and 

WHEREAS, the Governor encourages local 
officials to join hands with state government 
officials and the state legislature to provide a 
brighter future for all North Carolinians; 

NOW, THEREFORE, by the power vested in me 
as Governor by the laws and Constitution of the 
State of North Carolina, IT IS ORDERED: 

Section 1. Establishment and Members. 



There is hereby established the North Carolina 
Local Government Partnership Council ("Council") 
consisting of eighteen members. The Council shall 
be composed as follows: 
(a) three members representing county gov- 
ernments selected by the Governor from 
a listing of qualified persons submitted by 
the North Carolina Association of County 
Commissioners; 

three members representing municipal 
governments selected by the Governor 
from a listing of qualified persons sub- 
mitted by the North Carolina League of 
Municipalities; 

four at-large members appointed by the 
Governor; 



(b) 



(c) 



(d) two members of the North Carolina 
Senate appointed by the President Pro 
Tempore of the Senate; 

(e) two members of the North Carolina 
House of Representatives appointed by 
the Speaker of the House; 

(f) the Secretary of the Department of Envi- 
ronment, Health, and Natural Resources 
or his designee; 

(g) the Secretary of the Department of Trans- 
portation or his designee; 

(h) the Secretary of the Department of Hu- 
man Resources or his designee; and 
(i) the Lieutenant Governor, or his designee. 

The Executive Director of the North Carolina 
Association of County Commissioners and the 
Executive Director of the North Carolina League 
of Municipalities are invited to serve and the 
Governor's Director of Intergovernmental Rela- 
tions shall serve as ex-officio members of the 
Council. 

Section 2. Chair and Terms. 

The Lieutenant Governor shall serve as Chair of 
the Council. The Vice Chair of the Council shall 
be a municipal or county official selected by the 
Governor. Annually, after the first Vice-Chair is 
selected, the office shall rotate between officials 
representing municipalities and counties. Appoint- 
ees shall serve two-year terms, with no appointed 
members serving more than two complete, consec- 
utive terms on the Council. Members designated 
by their office shall serve terms for the duration of 
that office. 

The Council shall meet at least three times per 
year and may hold special meetings at the call of 
the Chair or of the Governor. 

Section 3. Purpose. 

The purpose of the Council shall be to advise the 
Governor, his Cabinet, other state agencies, local 
governments, and the general public about pro- 
grams, policies, and practices affecting local 
governments in North Carolina. To accomplish 
this purpose, the Council may: 

(a) identify opportunities for state-local 
cooperation; 

(b) review proposed programs and policies; 

(c) offer recommendations; 

(d) advocate on behalf of local governments; 

(e) assist the Governor's Office of Intergov- 
ernmental Relations in matters related to 
state-local relations; 

(f) undertake any studies or actions request- 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



876 



EXECUTIVE ORDERS 



ed of the Council by the Governor; 

(g) recommend to the Governor actions 
affecting state-local relations which will 
benefit local governments throughout the 
state; 

(h) meet with the Advisory Budget Commis- 
sion during that Commission's examina- 
tion of state budget needs; and 

(i) advise the Advisory Budget Commission 
of local government concerns related to 
the state budget. 

Section 4. Administration. 

The Council shall be located in the office of the 
Governor. Administrative support and staff for the 
Council shall be provided by the Governor's 
Office of Intergovernmental Relations. It is the 
responsibility of each cabinet department head to 
advise the Council of their proposed policies and 
plans. The elected heads of the Council of State 
departments may, and are hereby invited to, join 
in the effort represented by this Order. All servic- 
es of the Council available to the Governor under 
this Order shall be available to each of the heads 
of the aforesaid departments so electing to partici- 
pate. 

The members of the Council shall receive rea- 
sonable travel and subsistence expenses in accor- 
dance with state law. 



WHEREAS, these trends challenge state govern- 
ment to make full use of the productive capabilities 
and skills of all of our citizens; and 

WHEREAS, this administration believes that the 
personnel practices of state government should be 
nondiscriminatory and promote public confidence 
in the fairness and integrity of government; and 

WHEREAS, fair and impartial treatment of all 
employees in all terms and conditions of employ- 
ment is in the best interest of the State; and 

WHEREAS, this administration endorses taking 
positive approaches to ensure equal employment 
opportunity and a state government workforce 
which is representative at all occupational levels of 
North Carolina's citizens; and 

WHEREAS, positive and aggressive steps by 
management are necessary in preventing discrimi- 
nation, promoting fairness, and supporting a work 
environment where employees are valued for their 
strengths and encouraged to achieve their fullest 
potential; and 

WHEREAS, citizens of North Carolina should 
contribute to the equal employment opportunity 
efforts of our State; and 



This order shall be effective immediately. 

Done in Raleigh, North Carolina, this 12th day 
of August, 1993. 

EXECUTIVE ORDER NUMBER 22 
EQUAL EMPLOYMENT OPPORTUNITY 



WHEREAS, the State Personnel Commission has 
established policies and programs for state govern- 
ment to achieve these goals. 

NOW THEREFORE, by the authority vested in 
me as Governor by the Constitution and the laws 
of North Carolina, IT IS ORDERED: 



WHEREAS, the State of North Carolina is 
committed to providing equal employment opportu- 
nities to all present and prospective state employ- 
ees without regard to race, color, religion, national 
origin, sex, age or disability; and 

WHEREAS, the State recognized that effective 
and efficient govenmient requires the talents, 
skills, and abilities of all available human resourc- 
es; and 

WHEREAS, demographic, educational, econom- 
ic, technological, and lifestyle trends are dramati- 
cally reshaping the labor force that will be avail- 
able to state government now and in the future; 
and 



Section L Equal Employment Policies and 
Programs. 

The policies and programs that have been adopt- 
ed by the State Personnel Commission and ap- 
proved by the Governor represent the commitment 
of this State and must be strictly followed and fully 
complied with by every state agency, department 
and university. 

Section 2. Administration. 



Each agency, department head and university 
chancellor is responsible for the successful imple- 
mentation of these policies and programs and this 
Order, and shall: 
(1) Designate an official at the deputy secre- 
tary or assistant secretary level to assume 
responsibility for the operation and im- 



877 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



EXECUTIVE ORDERS 



# 



(2) 



I 



\ 



plementation of their equal opportunity 
plan and program. 

Designate the appropriate number of full- 
time equal employment opportunity 
(EEO) officers to perform the full range 
of EEO responsibilities for every 500- 
1500 employees to ensure the develop- 
ment and implementation of an effective 
EEO plan and program which achieve the 
EEO objectives. The Office of State 
Personnel is authorized to review and 
approve the appropriateness of the num- 
ber of designated EEO officers consider- 
ing organizational size, structure and 
geographical dispersion. Agencies, 
departments or universities with 1-499 
employees shall designate a part-time 
EEO officer who shall have direct access 
to the agency, department or university 
head or their designee as indicated in 
subsection (1) above. 
Ensure that the EEO officers report 
directly to the agency, department or 
university head or designated deputy or 
assistant secretary for EEO purposes. 
Ensure that the agency's, department's or 
university's commitment to equal em- 
ployment opportunity is clearly transmit- 
ted to all employees. 
Provide adequate resources and support 
to the EEO officers in the development 
and implementation of the EEO plan and 
program designed to achieve the equal 
opportunity goals. 

Ensure that personnel policies are admin- 
istered fairly and personnel practices are 
nondiscriminatory . 

Ensure that each supervisory and man- 
agement employee has, as a part of their 
performance management work plan, 
responsibility to comply with EEO laws 
and policies, and, 

Provide reasonable accommodations for 
otherwise qualified individuals with 
disabilities who can perform the essential 
functions of the job in question if such 
accommodations are made. These ac- 
commodations shall be in accordance 
with the Americans with Disabilities Act 
(ADA) Title I final rules and regulations. 



Section 3. Office of State Personnel. 

The State Personnel Director shall: 
(1) Provide technical assistance, 
resource/support programs, monitoring 



(3) 



(4) 



(5) 



(6) 
(7) 



(8) 



(2) 
(3) 



(4) 



(5) 



(6) 

(7) 

(8) 
(9) 
(10) 



(11) 



and evaluation to assist agencies, depart- 
ments, and universities in achieving their 
equal employment opportunity goals. 
Review and approve all EEO plans. 
Conduct on-site audits of agency, depart- 
ment, and university EEO programs and 
their administration to determine their 
effectiveness. 

Develop systems to review, analyze, and 
evaluate trends and make recommenda- 
tions to the Governor regarding all per- 
sonnel policies and practices which affect 
all terms, conditions, and benefits of 
employment. 

Design and implement monitoring and 
reporting systems to measure the effec- 
tiveness of agency, department and uni- 
versity EEO programs and personnel 
practices . 

Provide EEO training to managers, su- 
pervisors and employees. 
Develop, with the approval of the Gover- 
nor and the State Personnel Commission, 
state government- wide EEO policies, 
programs and procedures. 
Develop and promote programs and 
practices to encourage fair treatment of 
all state employees. 

Compile, analyze, and submit reports to 
the Governor which demonstrate the 
State's EEO progress. 
Establish procedures for determining 
reasonable accommodations which result 
in an uniform and fair process for appli- 
cants and employees with disabilities, 
and. 

Develop an EEO plan for state govern- 
ment. 



Section 4. Reports and Records. 

The State Personnel Director shall submit quar- 
terly reports to the Governor on each agency's, 
department's and university's progress to ensure 
that its workforce is representative of the citizens 
of North Carolina and that all terms and conditions 
of employment are fair and non-discriminatory. 

Section 5. Citizen Contribution . 

The North Carolina Human Relations Commis- 
sion shall provide oversight and review of state 
government's implementation of the EEO program 
and goals, thereby assuring citizen contributions to 
the program. The Commission shall advise the 
Governor and the State Personnel Director on the 
progress and make recommendations for their 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



878 



EXECUTIVE ORDERS 



consideration. 

Section 6. Veterans' Preference. 

Nothing in this Order shall be construed to repeal 
or modify any federal, state or local laws, rules or 
regulations creating special rights or preferences 
for veterans. 

Section 7. Effect on other Executive Orders. 

Executive Orders 18 and 76 of the Martin Ad- 
ministration are hereby rescinded. 

This Executive Order shall be effective immedi- 
ately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 13th day of August, 1993. 



i 



i 



i 



879 8:11 NORTH CAROLINA REGISTER September 1, 1993 



IN ADDITION 



I his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

JPT:MAP:NT:lrj Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-1962 Washington, D.C. 20035-6128 

August 2, 1993 

DeWitt F. McCariey, Esq. 

City Attorney 

P. O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCariey: 

This refers to ten annexations [Ordinance Nos. 2589 through 2591, 2601 through 2602, 2619 
through 2622 and 2624 (1993)] and the designation of the annexed areas to single-member districts of the 
City of Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on June 
2, 1993. 

The Attorney General does not interpose any objection to the specified changes . However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 
5 (28 C.F.R. 51.41). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



8:11 NORTH CAROLINA REGISTER September 1, 1993 880 



m ADDITION 



U.S. Department of Justice 

Civil Rights Division 

JPT:MAP:CGM:lrj:tlb Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-2373 Washington, D.C. 20035-6128 

August 9. 1993 

Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602 

Dear Mr. Crowell: 

This refers to Chapter 306 (1993), which provides for a seven-member city council elected from 
two double-member districts with three at large (with no designated posts except for the separately 
designated position of mayor), the districting plan, the direct election of the mayor with a 40 percent 
plurality requirement, four-year terms, staggered terms for councilmembers (with the at-large members 
elected concurrently), candidate qualification procedures, general election and runoff election dates, and 
procedures for filling vacancies for the Cit^' of Reidsville in Rockingham County, North Carolina, submitted 
to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
1973c. We received your initial submission on July 13. 1993; supplemental information was received on 
August 4, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the 
right to reexamine this submission if additional information that would otherwise require an objection comes 
to our attention during the remainder of the sixty-day re\'iew period. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely. 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief. Voting Section 



881 8:11 NORTH CAROLINA REGISTER September 1, 1993 



IN ADDITION 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, 
AND NATURAL RESOURCES 

AVAILABLE FOR REVIEW AND COMMENT: 

the 

COMPREHENSIVE CONSERVATION and MANAGEMENT PLAN 

for the ALBEMARLE-PAMLICO ESTUARINE STUDY 

09/01/93 

The Albemarle-Pamlico Estuarine Study, a program of the U.S. Environmental Protection Agency and the 
N.C. Department of Environment, Health and Natural Resources, is concluding its five year effort to 
develop a management plan to guide the Albemarle-Pamlico Estuarine Study communities and state and 
federal Agencies in protecting the estuary. 

As required by Section 320 of the Clean Water Act, the Albemarle-Pamlico Estuarine Study Management 
Conference has prepared a Comprehensive Conservation Management Plan (CCMP) that details the 
condition of the estuary and lays out an agenda for cleaning up and protecting the estuary. 



The draft CCMP is available for public review and comment. 



LOCATION: 



The CCMP may be reviewed at or obtained from the Albemarle-Pamlico Estuarine 
Study Public Involvement Office. See below for address. 



HEARING: 



Five public hearings have been scheduled for the following dates and locations: 
(All begin at 7:00 p.m.) 



October 12, 1993 MOREHEAD CITY 
Crystal Coast Civic Center 
Arendell Street 
Morehead City, N.C. 



October 13, 1993 GREENVILLE 

East Carolina University 
Regional Development Inst. 
First & Reade Streets 
Greenville, N.C. 



October 14, 1993 RALEIGH 
Ground Floor Hearing Room 
Archdale Building 
512 Salisbury Street 
Raleigh, N.C. 



October 18, 1993 EDENTON 

Swain Auditorium 
(Old Swain School) 
Court Street 
Edenton, N. C. 



October 19, 1993 KILL DEVIL HILLS 

Holiday Inn 

1601 S. Virginia Dare Trail 

Kill Devil Hills, N.C. 



CONTACT: 



Joan Giordano, Public Involvement Coordinator 
Albemarle-Pamlico Estuarine Study 
1424 Carolina Avenue 
Washington, North Carolina 27889 
(919)946-6481 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



882 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rule cited as 10 NCA C 3R . 0305. 

1 he proposed effective date of this action is 
January 4, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on October 29, 1993 at the Council Building. 
Room 201, 701 Barbour Drive. Raleigh. NC 
27603. 



Ixeason for Proposed Action: To adopt as a 
permanent rule, the temporary' rule was adopted 
effective August 11, 1993, which revised the 
minimum and maximum fee of Certificate of Need 
(CON) applications to be consistent with Senate 
Bill 204 which was ratified on July 18. 1993. 

i^omment Procedures: All written comments must 
be submitted to Jackie Sheppard, APA Coordina- 
tor. Division of Facility Services, P. O. Box 
29530. Raleigh. NC 27626-0530. telephone (919) 
733-2342. up to and including October 15, 1993. 
Written comments submitted after the deadline will 
not he considered. 

CLditor's Note: This Rule was filed as a tempo- 
rary amendment effective August 11, 1993 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 3 - FACILITi' SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .0300 - APPLICATION AND 
REVIEW PROCESS 

.0305 FILING APPLICATIONS 

(a) An application will not be reviewed by the 
agency until it is filed in accordance with this 
Rule. 

(b) An original and a copy of the application 
shall be received by the agency no later than 5:00 



p.m. on the last working day prior to 15 days 
before the first day of the scheduled review period. 
An application will not be included in a scheduled 
review if it is not received by the agency by this 
deadline. Each applicant shall transmit, with the 
application, a fee to be determined according to 
the following formula: 

(1) With each application proposing no 
capital expenditure or the addition of a 
sixth bed to an existing or approved 
five bed intermediate care facility for 
the mentally retarded, the proponent 
shall transmit a fee in the amount of 
four hundred dollar s ($ 4 00.00) two 
thousand dollars ($2,000) . 

(2) With each application, other than those 
referenced in (1) of this Rule, propos- 
ing a capital expenditure of up to, but 
not including, five hundred thousand 
dollars ($500,000), the proponent shall 
transmit a fee in the amount of ene 
thou s and dollars ($1,000.00) two thou- 
sand five hundred dollars ($2,500) . 

(3) With each application, other than those 
referenced in Subparagraph (b)(1) of 
this Rule, proposing a capital expendi- 
ture of five hundred thousand dollars 
($500,000) or greater, the proponent 
shall transmit a fee in the amount of 
one thousand dollars ($1,000.00) two 
thousand five hundred dollars ($2,500) , 
plus an additional fee equal to -:QQ2 
.0025 of the amount of the proposed 
capital expenditure in excess of five 
hundred thousand dollars ($500,000). 
The additional fee shall be rounded to 
the nearest whole dollar. In no case 
shall the total fee exceed fifteen thou 
s and dollars ($15,000) seventeen thou- 
sand five hundred dollars ($17,500) . 

(c) After an application is filed, the agency shall 
determine whether it is complete for review. An 
application shall be complete unless: 

(1) the requisite fee has not been received 
by the agency; or 

(2) a signed original and copy of the appli- 
cation have not been submitted to the 
agency on the appropriate application 
form. 

(d) If the agency determines the application is 
not complete for review, it shall mail notice of 
such determination to the applicant within five 
business days after the application is filed and shall 
specify what is necessary to complete the applica- 
tion. If the agency determines the application is 



883 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



complete, it shall mail notice of such determination 
to the applicant prior to the beginning of the 
applicable review period. 

(e) Information requested by the agency to 
complete the application must be received by the 
agency no later than 5:00 p.m. on the last working 
day before the first day of the scheduled review 
period. The review of an application will com- 
mence in the next applicable review period that 
commences after the application has been deter- 
mined to be complete. 

(f) If an application is withdrawn by the appli- 
cant before the first day of the applicable review 
period, the application fee, if paid, will be refund- 
ed to the applicant. 

Statutory Authority G. S. 131E-1 77; 131E-182; S.L. 
1983, C. 713. 






ISotice is hereby given in accordance with G.S. 150B-21.2 that the DHR/Division of Services for the 
Blind/Commission for the Blind intends to amend rule cited as 10 NCAC 19C .0209. 

1 he proposed effective date of this action is December 1 , 1993. 

A he public hearing will be conducted at 10:00 a.m. on September 18, 1993 at the Division of Services for 
the Blind, Governor Morehead School Campus, Fisher Building Conference Room, 309 Ashe Avenue, 
Raleigh. NC 27606. 

MXeason for Proposed Action: To establish procedures for awarding vacant facilities in the Business 
Enterprises Program. 

\^omment Procedures : Any interested person may present his/her comments either in writing at the hearing 
or orally at the hearing. Any person may request information, permission to be heard, or copies of the 
proposed regulation, by writing or calling John DeLuca, Div. of Services for the Blind, 309 Ashe Ave., 
Raleigh, NC 27606. 733-9822. 

CHAPTER 19 - SERVICES FOR THE BLIND 

SUBCHAPTER 19C - BUSINESS ENTERPRISES PROGRAM 

SECTION .0200 - LICENSING AND PLACEMENT 

.0209 FILLING OF VACANCIES 

(a) A listing of available concession stand locations will be made available to all licensees. This listing 
will provide information about the location, and will also specify any particular work experience, education, 
or abilities which may be required at that location. 

(b) Licensees who wish to be assigned to any of the locations listed may make application through the 
appropriate regional division office responsible for administering the concession stand program. 

(c) Transfers and promotions, and initial assignments will be based on ability and p e rformanc e . Seniority 



8:11 NORTH CAROLINA REGISTER September 1, 1993 884 



PROPOSED RULES 



will be considcrod only to break tics between competitive applicants, the following procedures: 

( 1) A notice of available facilities will be sent to each licensee on the last working day of the month. 
The notice will provide a short description of the vacancy and who to contact for more 
information. 

(2) All applications must be post-marked by the 10th of the following month and mailed to the Chief 
of Business Enterprises at the State Office. 309 Ashe Avenue. Raleigh, N.C. 27606. 

(3) Inter\'iews v.\\\ be conducted on the second Friday of the month which follows the application 
deadline. 

(4) At least 10 working days prior to the interview, the Business Enterprises Counselor who works 
with the applicant will calculate the applicant's points for sanitation, seniority. Financial 
Analysis,' Operating Standards [Subparagraphs (d). (1 ). (2). (3) of this Rule! and inform the 
applicant of his point total. The applicant will have five working days to review the point total 
and request any adjustments. 

(5) After adding together the points from the sanitation, seniority. Financial Analysis/Operating 
Standards. Customer Relations and Oral Exam/Interview Sections [Subparagraphs (d). (1). (2). 
(3). (4). (5). (6), (7)) of this Rulel for each applicant, the applicant with the highest point total 
(if above 60 points) will be awarded the vacancy. If the applicant with the highest point total 
declines to accept the location, it will be offered to the next highest applicant (if above 60 points) 
and so on^ In the case of an exact tie, the applicant with the most time in the Business 
Enterprises Program will be awarded the location. 

(6) Applicants u ill be notified as soon as possible after their inter\'iew whether or not they have been 
awarded a location. (Notified by phone, followed up in writing). 

(7) Upon being awarded a location, the applicant has 30 days to fill the vacancy, unless the Division 
and the applicant agree to another time frame. TTie location may not be filled for 15 working 
days following the av-ard to allow time for administrative appeals to be filed. If an appeal is 
filed, the location will not be filled until the appeal is resolved. If there js only one applicant 
for a location, the 15 day waiting period does not apply. 

(8) If an applicant is awarded a facility and does not accept the position, the applicant v.'ill not be 
able to apply for another position for one year. An applicant may withdraw his application up 
to two days prior to his interview and avoid the penalty . Applicants who apply for and are 
awarded more than one location will not be penalized as long as they accept one award. 

(9) If an applicant is awarded a facility and has not had an Operator Agreement with the Agency in 
the last two years, the applicant may be required to repeat the necessary on-the- job-training. The 
Interview Committee may also recommend refresher course training as necessary to assure 
qualified management. 

( 10) Licensees/operators not selected have the right to file an administrative appeal as provided for 
in Subchapter 19C Section .0400. The fifteen-day limit to file an appeal will begin from the date 
informed by telephone of the results of the award . 

(11) An applicant must have operated a Business Enterprises location for six months prior to the cut- 
off date for calculating financial performance according to standards to be considered an operator 
otherwise, he will be in licensee status. 

(12) If an operator lea\'es the Business Enterprises Program and then applies for a location within 12 
months of leaving, his financial performance according to standards for the 12 months prior to 
his leaving v.'ill be used to calculate points in the Financial Performance Section. 

(13) Financial analyses of facilities will be done ever\' tv>o years. The analysis [s on the facility not 
the operator; however, if an operator enters a facility and makes major changes, he may request 
a new analysis after at least four months in the new facility, or the Rehabilitation Supervisor may 
order a new analysis. If an applicant's financial analysis is more than two years old but less than 
tv.'o and one half years old and the applicant's performance is neither abo\'e 100% nor belov^' 
85% on either measure, the financial analysis will be considered current. 

(14) An applicant who does not hold the appropriate license for the vacancy may be awarded the 
facility contingent upon successfully completing the necessary training. Applicants v.'ho hold the 
correct level of license but have not operated a facility' at that level for at least tv>o years may 
be required, at the discretion of the Interview Committee, to complete refresher training. 

(15) An operator ma\' not sit on the Interview Committee for a location for which he is applying. If 



885 8:11 NORTH CAROLINA REGISTER September 1, 1993 



PROPOSED RULES 



the Vice-Chairman and the Chairman of the Food Service Committee and the Chairman of the 
sub-committee on Transfer and Promotion are all restricted from sitting on the Interview 
Committee under this rule, those three must pick another Food Service Committee member to 
sit on the Interview Committee. 

(16) The schedule for interviewing and awarding vacancies may be changed at certain times of the 
year to accommodate holidays, too many applications to be processed in one day, and the end-of- 
year close-out. 

(17) Applicants will be reimbursed for their expenses to come to the interview at the state's 
established rates. The Business Enterprises Program will only reimburse for two interviews p er 
year. After that, applicants must bear their own expenses for coming to interviews. Licensees 
who have active Rehabilitation cases should be reimbursed through the Rehabilitation program. 

(d) Criteria To Be Used In Determining Points: 
(1) Sanitation: 

(A) Ten point maximum. 

(B) One point for each sanitation grade point above ninety. 

(C) Sanitation grade to be arrived at by averaging all sanitation scores received during last two 
years. 

(D) Five points will be subtracted for any adjusted B grade in the last two years. 

(E) The Business Enterprises Counselor will determine an adjusted grade by adding back in any 
points subtracted for deficiencies over which the operator has no control. Operator must 
inform Business Enterprises Counselor when an inspection has occurred so he can review the 
inspection and adjust the grade if needed. It is the operator's responsibility to make sure the 
Business Enterprises Counselor has copies of every sanitation inspection form from the relevant 
period so that they can calculate an accurate grade. 

(2") Seniority: 

(A) Five point maximum. 

(B) Seniority points will be awarded as follows: 

Years in Business Enterprises Program ; Points 
to 4.99 z Q points 
5 to 9^ - 1 point 
10 to 14.99 - 2 points 
15 to 19.99 - 3 points 
20 to 24.99 - 4 points 
25 and over ; 5 points 

(C) Seniority is defined as the amount of time in full month increments an individual has been 
working in the Business Enterprises Program as a licensee or operator. A licensee/operator 
must work 51 % of the working days in a month to receive credit for that month. The cutoff 
date for accruing time in the Program will be the end of the month when the vacancy is 
advertised. 

(3) Performance According to Financial Analysis/Operating Standards: 

(A) 50 Points Maximum. 

(B) Applicants will receive 20 points for meeting their sales standard. 

(C) Applicants will receive 20 points for meeting their gross profit percentage standard. 

(D) Applicants will receive 5 points for meeting or exceeding 92.5% of their sales optimum 

(E) Applicants will receive 5 points for meeting or exceeding 92.5% of their gross profit 
percentage optimum. 

(F) Points according to Financial Analysis/Operating Standards in this Section will be calculated 
as follows: 

(i) Use sales and gross profit figures for the twelve month period ending with the last day of 

the same month in which the vacancy is advertised. This is the cut-off date for financial 

performance calculations, 
(ii) Take the facility's average monthly sales for the past twelve months, and calculate what 

percentage of the optimum it is. If k is over 85%. the applicant gets 20 points; if U is 

92.5% or more, the applicant gets an additional 5 points, 
(iii) Take the facility's gross profit percentage for the last twelve months and calculate what 



8:11 NORTH CAROLINA REGISTER September 1, 1993 886 



PROPOSED RULES 



percentage of the optimum it is. If it is over 85%, the applicant gets an additional 5 points. 
Example ; The Level JJ facility in the XYZ Building has a sales standard of three thousand 
dollars ($3.000) per month with an optimum of three thousand five hundred and twenty- 
nine dollars ($3.529) per month. Its gross profit percentage standard is 40% with an 
optimum of 47%. The actual performance for the past twelve months of the facility is three 
thousand five hundred dollars ($3.500) per month in sales and a 42.3% gross profit 
percentage. Three thousand five hundred dollars ($3.5(X)) in sales is 99. 1 % of the optimum 
sales and a 42.3% gross profit percentage is 90% of the optimum gross profit. The 
applicant would receive 20 points for meeting his sales standard 5 points for exceeding 
92.5% of his sales optimum and 20 points for meeting his gross profit percentage standard. 
Out of a possible 50 points for financial performance, the applicant would get 45 points. 

(4) Customer and Building Management Relations: 

(A) Five points will be deducted for each substantiated customer complaint in the past two years. 
up to a maximum of K) points. 

(B) If the applicant has more than three substantiated customer complaints, he will not be 
considered for the award. A substantiated complaint is a written complaint which results in a 
letter to the operator with a copy to the operator's personnel file. TTie operator has the right 
to appeal the letter at the time the letter is placed in the operator's personnel file. No building 
management complaint can be used against an operator prior to June _L 1993. 

(5) Oral Exam/Interview: 

(A) 30 points maximum. 

(B) Interview will be face to face (no conference calls). 

(C) Interviews will be conducted on the second Friday of the month which follows the month 
applications are due. 

(D) All applicants must be interviewed. 

(E) Oral Exam/Interview will be conducted by: 
(i) the Chief of Business Enterprises. 

(ii) the Area Rehabilitation Supervisor or B.E. Counselor for the area in which the vacancy 

occurs, and 
(iii) the Vice-Chairman of the Food Service Committee or the Chairman in his absence, or in 

the absence of the Chairman, the Chairman of the Transfer and Promotion subcommittee. 

(F) The Oral Exam part will consist of 10 questions drawn either from a pool of standard questions 
or developed by the interview committee prior to the interview. The oral exam questions will 
relate to any special needs of the vacant facility as well as to standard responsibilities and 
knowledge areas of Business Enterprises operators. Each member of the Interview Committee 
will evaluate the applicant's response to each question in the oral exam and assign either zero, 
one, one and a half or two points to the applicant's answer. There will be at least one question 
involving a calculation and a talking calculator will be provided, although applicants are 
recommended to bring their own. The oral exam will yield a possible 20 points. 

(G) The interview part will consist of a variety of questions in a give and take format. Each 
member of the Interview Committee will evaluate the applicant's response to the interview 
questions and will award up to ten points at his/her discretion. The interview part must include 
the following elements: a review of the applicant's net profit percentage and statement of 
revenues and expenses for the past 12 months; a comparison of the applicant's performance to 
various statewide averages such as average gross and net profit percentages, salary costs, sales 
per hours open, sales p er building population, etc.; two "philosophy of business" type questions 
designed to promote a general discussion and allow the Interview Committee the opportunity 
to evaluate the applicant's experience, maturity, expertise, and ability; a discussion of work 
experience outside of the Business Enterprises Program. Since points are awarded for 
seniority, time in the Business Enterprises Program will not be considered as a reason to award 
points; however, relevant work experience in the Business Enterprises Program may be 
discussed and taken into consideration. Applicants are encouraged to bring letters of 
recommendation, certificates, and other documents that would aid the Interview Committee in 
awarding its discretionary points. 

(H) Each interviewer will award discretionary points individually and the total score of Oral Exam 



887 8:11 NORTH CAROLINA REGISTER September 1, 1993 



PROPOSED RULES 



and Interview points from each interviewer will be averaged and added to the applicant's points 
from the other Sections. 

(6) Licensees and trainees: 

(A) A licensee who has no previous experience in the North Carolina Business Enterprises Program 
will be assigned 35 points in the Financial Analysis/Operating Standards category. While a 
trainee is in training, he will be graded on sanitation at the Rehabilitation Center and at each 
on-the-job training site to compile a training sanitation grade for use in assigning points in the 
sanitation category. 

(B) A licensee with previous Business Enterprises experience will be assigned 35 points in the 
Financial Analysis/Operating Standards category. Previous sanitation records will be 
considered, if available. If no previous sanitation records are available, the applicant has the 
option of taking the Food Service Sanitation Test offered by the Rehabilitation Center or 
through the Business Enterprises Program. If the licensee scores a 90% or above on the test. 
he will be given three points in the Sanitation Section. 

(C) Applicants must have satisfactorily completed Level I training or have a Level I license to be 
interviewed. 

(7) Maximum Point Scale: 

OPERATOR LICENSEE 



FAOS Performance 






50 35 


Interview 






30 30 


Sanitation 






10 10 


Seniority 






05 


Customer relations 






up to minus 10 
points 




95 75 


applicant must score at least 60 total 


points 


to be awarded 


a location. 



Statutory Authority G.S. 111-27; 20 U.S. C. , sec. 107 a et seq. , as amended. 

reimbursement. 



* * 






iSotice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule cited as 10 NCAC 
26H .0202. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on October 4, 1993 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

MXeason for Proposed Action: Rule necessary to 
change all primary affiliated teaching Hospitals for 
the University of North Carolina Medical Schools 
from a per diem rate of reimbursement to cost 



(comment Procedures: Written comments con- 
cerning this amendment must be submitted by 
October 4, 1993, to: Division of Medical Assis- 
tance, 1985 Umstead Drive, Raleigh, NC 27603 
ATTN: Clarence Ervin, APA Coordinator. Oral 
comments may be presented at the hearing. In 
addition, a fiscal impact statement is available 
upon written request from the same address. 

tiiditor's Note: This Rule was filed as a tempo- 
rary amendment effective August 6, 1993 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 



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888 



PROPOSED RULES 



SECTION .0200 - HOSPITAL INPATIENT 
REIMBURSEMEr«rr PLAN 

.0202 RATE SETTING METHODS 

(a) An annual rate is determined for each hospi- 
tal to be effective for dates of service beginning 
each July 1 . Rates are derived from cost reports 
for a base-year period or from previous appeal 
decisions. The initial base-year is the 
cost-reporting period ending in 1981. Services 
provided prior to July 1, 1986 are reimbursed at 
rates not to exceed the rates effective July 1 , 1985. 

(b) The prospective rate is the sum of the 
operating rate component and the capital rate 
component. The capital rate component is the 
higher of the base-year capital per diem cost or the 
most recent capital rate as adjusted upon previous 
appeal. The base-year capital cost per diem is 
computed by dividing total capital costs allocated 
to inpatient services by total inpatient days. The 
operating rate component is determined by 
inflating the Medicaid base-year operating cost per 
diem to the rate year. The base-year operating 
cost per diem is computed by subtracting the 
capital cost per diem from the total base-year 
Medicaid cost per diem. Base-year Medicaid costs 
include inpatient routine, special care, and 
ancillary services, malpractice insurance, interns' 
and residents' services, and other covered inpatient 
services. 

(c) Inflation factors for the operating rate 
components are based on the National Hospital 
Market Basket Index and the most recent actual 
and projected cost data available from the North 
Carolina Office of State Budget and Management. 

(d) The prospective rate for a new hospital is set 
at the lower of: 

(1) The all-hospital mean rate; or 

(2) Seventy-five percent of the hospital's 
projected average gross inpatient 
revenue per day during the first year of 
operations. 

This provision applies to a hospital if a cost report 
covering at least twelve months of normal 
operations has not been filed. This rate is the 
base-year rate until a desk-reviewed cost report 
covering at least twelve months of normal 
operations is available. 

(e) Out-of-state hospital services are reimbursed 
according to the rates established by the Medicaid 
Agency of the State in which the hospital is 
located. If a usable rate cannot be obtained, 
services are reimbursed at 75 percent of billed 
charges or a negotiated rate not to exceed 



reasonable cost. 

(f) The initial base-year for psychiatric hospitals 
is the cost reporting period ending in 1989, or 
1990 if a full year cost report is available as of 
April 1, 1991. TTie total base-year per diem cost 
for a hospital is limited to the median per diem 
cost in the base-year of all psychiatric hospitals. 
The limit does not apply to or reduce any amorti- 
zation of start-up costs of an individual hospital. 
State-operated hospitals are not included in the 
calculation of the median per diem cost. 

(g) To assure compliance with the separate 
upper payment limit for State-operated facilities, 
the hospitals operated by the Department of Hu- 
man Resources and the University of North Caroli 
na hospitals all the primary affiliated teaching 
hospitals for the University of North Carolina 
Medical Schools, will be reimbursed their reason- 
able costs in accordance with the provisions of the 
Medicare Provider Reimbursement Manual. 

(h) This plan intends to encourage the use of 
lower-cost hospitals for routine illnesses. Hospi- 
tals with rates at or below the all-hospital mean 
will be reimbursed at the full prospective rate 
without day limits. Hospitals with rates higher 
than the mean rate of all hospitals will be reim- 
bursed at the full prospective rate up to an annual 
days limit. Days in excess of the limit will be 
reimbursed at the mean rate of hospitals below the 
all-hospital mean. This reimbursement limitation 
will be eliminated for claims paid in April, 1991 
and thereafter if and when: 

(1) the Health Care Financing Administra- 
tion, U.S. Department of Health and 
Human Services, approves amendments 
submitted to HCFA by the Director of 
the Division of Medical Assistance on 
or about March 14, 1991 as #MA 
91-10 and #MA 91-11, wherein the 
Director proposes amendment of the 
State Plan to eliminate the "Annual 
Days Limit" to the Plan, and 

(2) the Director of the Division of Medical 
Assistance determines that sufficient 
funds are available pursuant to Rule 
.0206(b)(3) of this Section or otherwise 
for this purpose. 

Authority G.S. 108A-25(h): 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 



889 



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PROPOSED RULES 



TITLE 12 - DEPARTMENT OF 
JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21. 2 that the N. C. Private Protective Servic- 
es Board intends to amend rules cited as 12 NCAC 
7D .0203. .0301 - .0302 and .0401 - .0402. 

Ihe proposed effective date of this action is 
December 1, 1993. 

Ihe public hearing will be conducted at 10:00 
a.m. on September 16, 1993 at the State Bureau of 
Investigation, Conference Room, 3320 Old Gamer 
Road, Raleigh, N. C. 

iXeason for Proposed Action: 

12 NCAC 7D . 0203 - Amendment allows the Board 

to reinstate an expired license upon the submission 

of certain information. 

12 NCAC 7D .0301 - Amendment will allow the 

Board to consider security guard and patrol 

experience gained within the last ten years when 

determining an applicant's experience. 

12 NCAC 7D .0302 - Amendment will allow the 

Board to consider guard dog service experience 

gained within the last ten years when determining 

an applicant's experience. 

12 NCAC 7D .0401 - Amendment will allow the 

Board to consider private investigative experience 

gained within the last 10 years when determining 

an applicant's experience. 

12 NCAC 7D .0402 - Amendment will allow the 

Board to consider counterintelligence experience 

gained within the last ten years when determining 

an applicant's experience. 

i^omment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments until 
October 1, 1993. Written comments may be 
delivered to or mailed to: W. A. Hoggard, Private 
Protective Services Board, 3320 Old Gamer Rd. , 
P.O. Box 29500, Raleigh, N.C. 27626. 

CHAPTER 7 - PRIVATE 
PROTECTIVE SERVICES 

SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES BOARD 



SECTION .0200 - LICENSES: 
TRAINEE PERMITS 

.0203 RENEWAL OR RE-ISSUE 

OF LICENSES AND TRAINEE 
PERMITS 

(a) Each applicant for a license or trainee permit 
renewal shall submit an original and one copy of 
a renewal form. This form should be submitted to 
the administrator not less than 30 days prior to 
expiration of the applicant's current license or 
trainee permit and shall be accompanied by: 

(1) a recent head and shoulders color pho- 
tograph of the applicant of acceptable 
quality for identification, one inch by 
one inch in size; 

(2) statements of the result of a local crimi- 
nal history records search by the 
city-county identification bureau or 
clerk of superior court in each county 
where the applicant has resided within 
the immediate preceding 12 months; 
and 

(3) the applicant's renewal fee; and 

(4) proof of liability insurance as set out in 
G.S. 74C- 10(e). 

£b} If a licensee in pood standing with the Board 
has maintained a license at least two years and 
then allows the license to expire, the license may 
be re-issued if application is made within ten years 
of the expiration date and the following 
documentation is submitted to the Board: 

(1) an Application For Reinstatement of an 
Expired License; 

(2) one set of classifiable fingerprints on an 
applicant fingerprint card; 

(3) one recent head and shoulders 
photograph(s) of the applicant of 
acceptable quality for identification, one 
inch by one inch in size; 

(4) statements of the result of a local 
criminal history records search by the 
city-county identification bureau or 
clerk of superior court in each county 
where the ap plicant has resided within 
the immediate preceding 60 months; 

(5) the applicant's non-refundable 
application fee; 

(6) proof of liability insurance as set out in 
G.S. 74C-10(e); and 

(7) a separate check or money order made 
payable to the State Bureau of 
Investigations to cover criminal record 
checks performed by the State Bureau 
of Investigations. 



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September 1, 1993 



890 



PROPOSED RULES 



Statutory Authority G.S. 74C-5; 74C-9. 

SECTION .0300 - SECURITY GUARD 
AND PATROL: GUARD DOG SERVICE 

.0301 EXPERIENCE REQUIREMENTS/ 
SECURITY GUARD AND PATROL 
LICENSE 

(a) In addition to the requirements of 12 NCAC 
7D .0200, applicants for a security guard and 
patrol license shall: 

(1) establish to the Board's satisfaction 
three years experience within the past 
ftve jO years as a manager, supervisor, 
or administrator with a contract security 
company or a proprietary security 
organization performing guard and 
patrol functions; or 

(2) establish to the Board's satisfaction 
three years experience within the past 
fWe 10 years as a manager, supervisor, 
or administrator in security with any 
federal, U.S. Armed Forces, state, 
county, or municipal law enforcement 
agency performing guard and patrol 
functions. 

(b) The Board may give up to two years credit 
toward the experience requirements set forth in 
Paragraph (a)(1) and (2) of this Rule as follows: 

(1) one year of credit for a two year 
Associate Degree in Security, Criminal 
Justice or the equivalent conferred by 
an accredited technical institute, college 
or university; 

(2) one year of credit for a Bachelor's 
Degree in Business or Economics or the 
equivalent conferred by an accredited 
college or university; or 

(3) two years of credit for a Bachelor's 
Degree, Master's Degree or Doctorate 
in Security or Criminal Justice or the 
equivalent conferred by an accredited 
college or university. 

(c) Persons licensed under Chapter 74D of the 
General Statutes of North Carolina, may be issued 
a limited guard and patrol license exclusively for 
providing armed alarm responders. Applicants for 
such a limited license shall not be required to meet 
the experience requirements of 12 NCAC 7D 
.0302. Any experience gained under this limited 
license shall not be counted as experience for a full 
guard and patrol license. All armed responders 
shall be registered with the Board. 

Statutory Authority G.S. 74C-5: 74C-8; 74C-13. 



.0302 EXPERIENCE REQUIREMENTS 
FOR GUARD DOG SERVICE 
LICENSE 

In addition to the requirements of 12 NCAC 7D 
.02(X), applicants for a guard dog service license 
shall: 

(1) establish to the Board's satisfaction two 
years experience within the past five 10 
years as a manager, supervisor, adminis- 
trator, or dog handler with a contract 
security company or proprietary security 
organization performing guard dog func- 
tions; or 

(2) establish to the Board's satisfaction two 
years experience within the past five 20 
years as a manager, supervisor, adminis- 
trator, or dog handler with any federal, 
U.S. Armed Forces, state, county, or 
municipal agency performing guard dog 
functions. 

Statutory Authority G.S. 74C-5; 74C-8. 

SECTION .0400 - PRIVATE 

INVESTIGATOR: 
COUNTERINTELLIGENCE 

.0401 EXPERIENCE REQUIREMENTS FOR 
A PRIVATE INVESTIGATOR 
LICENSE 

(a) In addition to the requirements of G.S. 
74C-8 and 12 NCAC 7D .0200, applicants for a 
private investigator license shall: 

(1) establish to the Board's satisfaction 
three years of acceptable experience 
within the past five \0 years while 
satisfactorily conducting investigations 
as defined in G.S. 74C-3(a)(8) with a 
contract security company or with a 
private person, firm, association or 
corporation; or 

(2) establish to the Board's satisfaction 
three years of acceptable experience 
within the past ftve 10 years while 
satisfactorily conducting investigations 
as defined in G.S. 74C-3(a)(8) while 
serving in an investigative capacity as 
defined in 12 NCAC 7D .0104(9) with 
any Federal, U.S. Armed Forces, state, 
county, municipal law enforcement 
agency or other governmental agency. 

(b) The Board may give up to two years credit 
toward the experience requirements set forth in 
Paragraph (a) of this Rule as follows: 

(1) one year of credit for a two year Asso- 



891 



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NORTH CAROLINA REGISTER 



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PROPOSED RULES 



ciate Degree in Security, Criminal 
Justice or the equivalent conferred by 
an accredited technical institute, college 
or university; 

(2) one year of credit for a Bachelor's 
Degree in Business or Economics or the 
equivalent conferred by an accredited 
college or university; or 

(3) two years of credit for a Bachelor's 
Degree, Master's Degree or Doctorate 
in Security or Criminal Justice or the 
equivalent conferred by an accredited 
college or university. 

(c) Time spent teaching police science subjects 
at a post-secondary educational institution (such as 
a community college, college or university) shall 
toll the time for the minimum year requirements in 
12 NCAC 7D .0401(a). For the purposes of this 
Section, "toll" means that the experience gained by 
an applicant immediately prior to beginning 
teaching shall not be discredited. "Toll" shall not 
mean that credit is given for teaching police 
science subjects. 

Statutory Authority G.S. 74C-5(2). 

.0402 EXPERIENCE REQUIREMENTS 

FOR A COUNTERINTELLIGENCE 
LICENSE 

In addition to the requirements of 12 NCAC 7D 
.0200, applicants for a counterintelligence license 
shall: 

(1) establish to the Board's satisfaction three 
years experience within the past five 10 
years in counterintelligence; or 

(2) have successfully completed a course in 
counterintelligence given by a school 
specializing in counterintelligence which 
has been approved by the Board and 
which consists of not less than 40 hours 
of actual classroom instruction. 

Statutory Authority G.S. 74C-5. 

TITLE 13 - DEPARTMENT OF 
LABOR 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to amend rule cited as 13 NCAC 7F 
.01 OL 

1 he proposed effective date of this action is 



December 1. 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on September 21 , 1993 at the Labor Build- 
ing, Room 249, 4 West Edenton Street, Raleigh, 
NC 27601. 

MXeasonfor Proposed Action: There is a need for 
a new level of training within 29 CFR 1910. 120 - 
Hazardous Waste Operations and Emergency 
Response, for protection of the public from threat 
of environmental harm and property or bodily 
injury. 

i^omment Procedures: Persons wanting to pres- 
ent oral testimony at the hearing should provide a 
written summary of the proposed testimony to the 
Department three business days prior to the hear- 
ing date. Written comments will be accepted until 
October 1 , 1993. Direct all correspondence to Jill 
F. Cramer, NCDOL/OSHA, 413 N. Salisbury 
Street, Raleigh, NC 27603-5942. 

tLditor's Note: This Rule was filed as a tempo- 
rary amendment effective August 16, 1993 for a 
period of 180 days or until the permanent rule 
becomes elective, whichever is sooner. 

CHAPTER 7 - OFFICE OF 
OCCUPATIONAL SAFETY AND HEALTH 

SUBCHAPTER 7F - STANDARDS 

SECTION .0100 - GENERAL INDUSTRY 
STANDARDS 

.0101 GENERAL INDUSTRY 

(a) The provisions for the Occupational Safety 

and Health Standards for General Industry, Title 

29 of the Code of Federal Regulations Part 1910, 

are adopted by referencer except that within 

Subpart H ; Hazardous Materials, 29 CFR 

1910.120, Hazardous waste operations and 

emergency response, 29 CFR 1910.120(q)(6) is 

amended by adding a new level of training: 

"(vi) First responder operations 

plus level. This level of training 

is for public sector firefighters 

responding to hazardous substanc- 

es emergencies involving only 

gasoline, diesel fuel, or liquid 

propane gas (LPG) where the 



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892 



PROPOSED RULES 



situation requires more than the 
defensive actions allowed first 
responders at operations level 
(i.e. plugging/patching a fuel tank 
or shutting LPG valves at road- 
side emergencies). First respond- 
ers at the operations plus level 
shall have received at least train- 
ing equal to first responder opera- 
tions level and in addition shall 
receive training or have had 
sufficient experience to objective- 
\y_ demonstrate competency in the 
following areas and the employer 
shall so certify: 



(A} 



£B} 



iCj 



ID} 



Know how to select and 
use proper specialized 
personal protective 
equipment provided to 
the first responder at 
operations plus level; 
Understand basic 
hazardous materials 
terms as they pertain to 
hydrocarbon fuels; 
Understand hazard and 
risk assessment 
techniques that pertain to 
gasoline, diesel fuel, and 
LPGi 

able to perform 

containment. 

confinement 



im 



Be 

control. 

and/or 

operations for gasoline, 
diesel fuel, and LPG 
within the capabilities of 
the available resources 
and personal protective 
equipment; and 
Understand and know 
how to implement 
decontamination 
procedures for 
hydrocarbon fuels." 



(b) The parts of the Code of Federal Regulations 
adopted by reference in this Subchapter shall not 
automatically include any subsequent amendments 
thereto. 

(c) Copies of the applicable Code of Federal 
Regulations sections referred to in this Subchapter 
are available to the public. Please refer to 13 
NCAC 7A .0302 for the costs involved and from 
whom copies may be obtained. 

Statutory Authority- G.S. 95-131: 150B-21.6. 



TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - DEM/Air Quality 
intends to adopt rules cited as ISA NCAC 2D 
.0805 - .0806, . 1109 and 2Q .010] - .0111, .0201 

- .0207, .0301 - .0311, .0401 - .0418. .0501 - 
. 0524 and . 0601 - . 0606: amend 2D . 0101 . . 0501 , 
.0503. .0524 - .0525, .0530 - .0533, .0601, .0801 

- . 0804; and repeal 2H . 0601 - . 0607 and . 0609. 

I he proposed effective date of this action is 
February 1, 1994. 

1 he public hearing will be conducted: 
September 21, 1993 

7:00 p. m 

Auditorium 

Catawba Valley Community' College 

2550 Highway 70 South East 

Hickory, North Carolina 

September 27, 1993 

7:00 p.m. 
Groundfloor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, North Carolina 

September 29, 1993 

7:00 p.m. 

Criminal District Court Room 

Second Floor 

130 South Queen Street 

Kins ton, North Carolina 

ixeasonfor Proposed Action: To recodify current 
permit rules, to adopt permit rules to meet the 
requirements of Title IV and Title V of the federal 
Clean Air Act. to adopt new permit fee schedules, 
and to revise transportation facility (complex 
source) rules. 

K^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Any person desiring to comment for more 
than three minutes is_ requested ro submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. The hearing officer 



893 



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PROPOSED RULES 



may limit oral presentation lengths to five minutes 
if many people want to speak. The Environmental 
Management Commission (EMC) seeks comments 
on establishing de minimis levels for reporting 
emissions of various air pollutants. Based on 
comments received, the EMC may include in the 
final rules de minimis reporting levels. Also the 
EMC seeks comments on which air permit applica- 
tions or parts of applications need to be sealed by 
a professional engineer. The North Carolina 
Board of Professional Engineers and Land Survey- 
ors has determined that portions of the air quality 
permit application process for certain facilities 
involve the practice of engineering and, therefore, 
must be sealed by a registered professional engi- 
neer (PE). Based on comments received, the EMC 
may include in the final rules a requirement that 
certain permit applications or parts of permit 
applications be sealed by a PE. The hearing 
records will remain open until October 29, 1993, 
to receive additional written statements. 
Comments should be sent to and additional infor- 
mation concerning the hearings or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 

Division of Environmental Management 

P. O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-1489 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0100 - DEFINITIONS 
AND REFERENCES 

.0101 DEFINITIONS 

The definition of any word or phrase used in 
Regulations Rules of this Subchapter is the same as 
given in Article 21, Chapter 143 of the General 
Statutes of North Carolina, as amended. The 
following words and phrases, which are not de- 
fined in the article, have the following meaning: 

(1) "Act" means "The North Carolina Water 
and Air Resources Act." 

(2) "Air pollutant" means an air pollution 
agent or combination of such agents, 
including any physical, chemical, biologi- 
cal, radiative substance or matter which 
is emitted into or otherwise enters the 
ambient air particulate — matter, — dust, 
fumes, gas, mist, smoke, vapor, or any 



other air contaminant. — Water vapor is 
not considered an air pollutant . 

(3) "Ambient air" means that portion of the 
atmosphere outside of buildings and other 
enclosed structures, stacks or ducts, and 
which surrounds human, animal or plant 
life, or property. 

(4) "Approved" means approved by the 
Director of the Division of Environmen- 
tal Management. 

(5) "Capture system" means the equipment 
(including hoods, ducts, fans, etc.) used 
to contain, capture, or transport a pollut- 
ant to a control device. 

(6) "CFR" means "Code of Federal Regula- 
tions." 

(7) "Combustible material" means any sub- 
stance which, when ignited, will bum in 
air. 

(8) "Construction" means any physical 
change, including fabrication, erection, 
installation, change in method of opera- 
tion, or modification, of a facility, 
source, or air pollution control equip- 
ment. 

(9) "Control device" means equipment (fume 
incinerator, adsorber, absorber, scrubber, 
filtermedia, cyclone, electrostatic precipi- 
tator, or the like) used to destroy or 
remove air pollutant(s) prior to discharge 
to the ambient air. 

(10) "Day" means a 24-hour period beginning 
at midnight. 

(11) "Director" means the Director of the 
Division of Environmental Management 
unless otherwise specified. 

(12) "Dustfall" means particulate matter which 
settles out of the air and is expressed in 
units of grams per square meter per 30- 
day period. 

(13) "Emission" means the release or dis- 
charge, whether directly or indirectly, of 
any air pollutant into the ambient air 
from any source. 

(14) "Facility" means all of the pollutant 
emitting activities that are located on one 
or more contiguous or adjacent properties 
and that arc under the control of the same 
per s on or persons under common control. 

(15) "FR" means Federal Register. 

(16) "Fugitive emission" means those emis- 
sions which could not reasonably pass 
through a stack, chimney, vent, or other 
functionally equivalent opening. 

(17) "Fuel burning equipment" means equip- 



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894 



PROPOSED RULES 



ment whose primary puqjose is the pro- 
duction of energy or power from the 
combustion of any fuel. The equipment 
is generally used for, but not limited to, 
heating water, generating or circulating 
steam, heating air as in warm air furnace, 
or furnishing process heat by transferring 
energy by fluids or through process 
vessel walls. 

(18) "Garbage" means any animal and vegeta- 
ble waste resulting from the handling, 
preparation, cooking and serving of food. 

(19) "Incinerator" means a device designed to 
bum solid, liquid, or gaseous waste 
material. 

(20) "Opacity" means that property of a sub- 
stance tending to obscure vision and is 
measured in terms of percent obscura- 
tion. 

(21) "Open burning" means any fire whose 
products of combustion are emitted di- 
rectly into the outdoor atmosphere with- 
out passing through a stack or chimney, 
approved incinerator, or other similar 
device. 

(22) "Owner or operator" means any person 
who owns, leases, operates, controls, or 
supervises a facility, source, or air pollu- 
tion control equipment. 

(23) "Particulate matter" means any material 
except uncombined water that exists in a 
finely divided form as a liquid or solid at 
standard conditions. 

(24) "Particulate matter emissions" means all 
finely divided solid or liquid material, 
other than uncombined water, emitted to 
the ambient air as measured by methods 
specified in this Subchapter. 

(25) "Permitted" means any source subject to 
a permit under this Subchapter or Section 
15 NCAC 2H .06(K) Subchapter 15A 
NCAC 20. 

(26) "Person" means any individual, partner- 
ship, co-partnership, firm, company, 
corporation, association, joint stock 
company, trust, estate, political subdivi- 
sion, or any other legal entity, or its legal 
representative, agent or assigns. 

(27) "PMIO" means particulate matter with an 
aerodynamic diameter less than or equal 
to a nominal 10 micrometers as measured 
by methods specified in this Subchapter. 

(28) "PMIO emissions" means finely divided 
solid or liquid material, with an aerody- 
namic diameter less than or equal to a 



nominal 10 micrometers emitted to the 
ambient air as measured by methods 
specified in this Subchapter. 

(29) "Refuse" means any garbage, rubbish, or 
trade waste. 

(30) "Rubbish" means solid or liquid wastes 
from residences, commercial establish- 
ments, or institutions. 

(31) "Rural area" means an area which is 
primarily devoted to, but not necessarily 
limited to, the following uses: agricul- 
ture, recreation, wildlife management, 
state park, or any area of natural cover. 

(32) "Salvage operation" means any business, 
trade, or industry engaged in whole or in 
part in salvaging or reclaiming any prod- 
uct or material, including, but not limited 
to, metal, chemicals, motor vehicles, 
shipping containers, or drums. 

(33) "Smoke" means small gas-borne particles 
resulting from incomplete combustion, 
consisting predominantly of carbon, ash, 
and other burned or unbumed residue of 
combustible materials that form a visible 
plume. 

(34) "Smoke density measuring device" 
means: 

(a) Ringelmann Chart which is the chart 
published by the U.S. Bureau of Mines 
and described in their information 
Circular 8333 and on which are illus- 
trated graduated shades of grey to black 
for use in estimating the light obscuring 
capacity of smoke; 

(b) the pocket size Ringelmann Chart and 
other adaptations commonly used by 
trained smoke inspectors; 

(c) other equivalent standards approved by 
the commission. 

(35) "Source" means any stationary' article, 
machine, process equipment, or other 
contrivance^ or combination thereof, or 
any tank-truck, trailer or railroad tank 
car from which air pollutants emanate or 
are emitted, either directly or indirectly. 

(36) "Sulfur oxides" means sulfur dioxide, 
sulftir trioxide, their acids and the salts of 
their acids. The concentration of sulfur 
dioxide is measured by the methods 
specified in this Subchapter. 

(37) "Total suspended particulate" means any 
finely divided solid or liquid material, 
except water in uncombined form, that is 
or has been airborne as measured by 
methods specified in this Subchapter. 



895 



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NORTH CAROLINA REGISTER 



September I, 1993 



PROPOSED RULES 



(38) "Trade wastes" means all solid, liquid, or 
gaseous waste materials or rubbish result- 
ing from combustion, salvage operations, 
building operations, or the operation of 
any business, trade, or industry includ- 
ing, but not limited to, plastic products, 
paper, wood, glass, metal, paint, grease, 
oil and other petroleum products, chemi- 
cals, and ashes. 

(39) "ug" means micrograms. 

Statutory Authority G.S. 143-215. 3(a)(1); 143-213. 

SECTION .0500 - EMISSION CONTROL STANDARDS 

.0501 COMPLIANCE WITH EMISSION CONTROL STANDARDS 

(a) Purpose and Scope. The purpose of this Regulation Rule is to assure orderly compliance with 
emission control standards found in this Section. This Regulation Rule shall apply to all air pollution 
sources, both combustion and non-combustion. 

(b) In determining compliance with emission control standards, means shall be provided by the owner to 
allow periodic sampling and measuring of emission rates, including necessary ports, scaffolding and power 
to operate sampling equipment; and upon the request of the Division of Environmental Management, data 
on rates of emissions shall be supplied by the owner. 

(c) Testing to determine compliance shall be in accordance with the following procedures, except as may 
be otherwise required in Regulations Rules .0524, .0525, and .0604 of this Subchapter. 

(1) Method 1 of Appendix A of 40 CFR Part 60 shall be used to select a suitable site and the 
appropriate number of test points for the following situations: 

(A) particulate testing, 

(B) velocity and/or volume flow rate measurements; 

(C) testing for acid mist or other pollutants which occur in liquid droplet form, 

(D) any sampling for which velocity and/or volume flow rate measurements are necessary for 
computing final test results, and 

(E) any sampling which involves a sampling method which specifies isokinetic sampling. 
(Isokinetic sampling is sampling in which the velocity of the gas at the point of entry into the 
sampling nozzle is equal to the velocity adjacent to the nozzle.) 

Method 1 shall be applied as written with the following clarifications: Testing installations with 
multiple breechings can be accomplished by testing the discharge stack(s) to which the multiple 
breechings exhaust. If the multiple breechings are individually tested, then Method 1 shall be 
applied to each breeching individually. If test ports in a duct are located less than two diameters 
downstream from any disturbance (fan, elbow, change in diameter, or any other physical feature 
that may disturb the gas flow) or one-half diameter upstream from any disturbance, the acceptability 
of the test location shall be subject to the approval of the director Director , or his designee. 

(2) Method 2 of Appendix A of 40 CFR Part 60 shall be applied as written and used concurrently 
with any test method in which velocity and/or volume flow rate measurements are required. 

(3) Sampling procedures for determining compliance with particulate emission control standards shall 
be in accordance with Method 5 of Appendix A of 40 CFR Part 60. Method 17 of Appendix 
A of 40 CFR Part 60 may be used instead of Method 5 provided that the stack gas temperature 
does not exceed 320° F. The minimum time per test point for particulate testing shall be two 
minutes and the minimum time per test run shall be one hour. The sample gas drawn during 
each test run shall be at least 30 cubic feet. A number of sources are known to emit organic 
material (oil, pitch, plasticizers, etc.) which exist as finely divided liquid droplets at ambient 
conditions. These materials cannot be satisfactorily collected by means of the above Method 5. 
In these cases the commission will reserve the option to require the use of Method 5 as proposed 
on August 17, 1971, in the Federal Register, Volume 36, Number 159. 

(4) The procedures for determining compliance with sulfur dioxide emission control standards for 



8:11 NORTH CAROLINA REGISTER September 1, 1993 896 



PROPOSED RULES 



fuel burning sources may be either by determining sulfur content with fuel analysis or by stack 
sampling. Combustion sources choosing to demonstrate compliance through stack sampling shall 
follow procedures described in Method 6 of Appendix A of 40 CFR Part 60. If a source chooses 
to demonstrate compliance by analysis of sulfur in fuel, sampling, preparation, and analysis of 
fuels shall be in accordance with the following American Society of Testing and Materials 
(ASTM) methods: 

(A) coal: 

(i) sampling--ASTM Method D 2234-82; 

(ii) preparation-ASTM Method D 2013-72; 

(iii) gross calorific value (BTU)-ASTM Method D 2015-85; 

(iv) moisture content- ASTM Method D 3173-85; 

(V) sulfur content- ASTM Method D 3177-84 or ASTM Method D 4239-85; 

(B) oil: 

(i) sampling— A sample shall be collected at the pipeline inlet to the fuel burning unit after 
sufficient fuel has been drained from the line to remove all fuel that may have been 
standing in the line; 

(ii) heat of combustion (BTU)-ASTM Method D 240-85; 

(iii) sulfur content-ASTM Method D 129-64 (reapproved 1978). 
The sulfur content and BTU content of the fuel shall be reported on a dry basis. When the test 
methods described in Parts (A) or (B) of this Subparagraph are used to demonstrate that the ambient 
air quality standards for sulfur dioxide are being protected, the sulfur content shall be determined 
at least once per year from a composite of at least three or 24 samples taken at equal time intervals 
from the fuel being burned over a three-hour or 24-hour period, respectively, whichever is the time 
period for which the ambient standard is most likely to be exceeded; this requirement shall not 
apply to sources that are only using fuel analysis in place of continuous monitoring to meet the 
requirements of Section .0600 of this Subchapter. 

(5) Sulfuric acid manufacturing plants and spodumene ore roasting plants shall demonstrate 
compliance with Regulations Rules .0517 and .0527, respectively, of this Section by using 
Method 8 of Appendix A of 40 CFR Part 60. 

(6) All other industrial processes emitting sulfur dioxide shall demonstrate compliance by sampling 
procedures described in Method 6 of Appendix A of 40 CFR Part 60. 

(7) Sampling procedures to demonstrate compliance with emission standards for nitrogen oxides shall 
be in accordance with the procedures set forth in Method 7 of Appendix A of 40 CFR Part 60. 

(8) Method 9 of Appendix A of 40 CFR 60 shall be used when opacity is determined by visual 
observation. 

(9) Notwithstanding the stated applicability to new source performance standards or primary 
aluminum plants, the procedures to be used to determine fluoride emissions are: 

(A) for sampling emissions from stacks. Method 13A or 13B of Appendix A of 40 CFR Part 60, 

(B) for sampling emissions from roof monitors not employing stacks or pollutant collection systems. 
Method 14 of Appendix A of 40 CFR Part 60. and 

(C) for sampling emissions from roof monitors not employing stacks but equipped with pollutant 
collection systems, the procedure under 40 CFR 60.8(b), except that the Director of the 
Division of Environmental Management shall be substituted for the administrator. 

(10) Emissions of total reduced sulfur shall be measured by the test procedure described in Method 
16 of Appendix A of 40 CFR Part 60 or Method 16A of Appendix A of 40 CFR Part 60. 

(11) Emissions of mercury shall be measured by the test procedure described in Method 101 or 102 
of Appendix B of 40 CFR Part 61 . 

(12) Each test (excluding fuel samples) shall consist of three repetitions or runs of the applicable test 
method. For the purpose of determining compliance with an applicable emission standard the 
average of results of all repetitions shall apply. 

(13) In conjunction with performing certain test methods prescribed in this Regulation Rule , the 
determination of the fraction of carbon dioxide, oxygen, carbon monoxide and nitrogen in the 
gas being sampled is necessary to determine the molecular weight of the gas being sampled. 
Collecting a sample for this purpose shall be done in accordance with Method 3 of Appendix A 
of 40 CFR Part 60: 



897 8:11 NORTH CAROLINA REGISTER September 1, 1993 



PROPOSED RULES 



I 



(A) The grab sample technique may also be used with instruments such as Bacharach Fyrite (trade 
name) with the following restrictions: 

(i) Instruments such as the Bacharach Fyrite (trade name) may only be used for the 
measurement of carbon dioxide. 

(ii) Repeated samples shall be taken during the emission test run to account for variations in 
the carbon dioxide concentration. No less than four samples shall be taken during a one- 
hour test run, but as many as necessary shall be taken to produce a reliable average. 

(iii) The total concentration of gases other than carbon dioxide, oxygen and nitrogen shall be 
less than one percent. 

(B) For fuel burning sources, concentrations of oxygen and nitrogen may be calculated from 
combustion relations for various fuels. 

(14) For those processes for which the allowable emission rate is determined by the production rate, 
provisions shall be made for controlling and measuring the production rate. The source shall be 
responsible for ensuring, within the limits of practicality, that the equipment or process being 
tested is operated at or near its maximum normal production rate or at a lesser rate if specified 
by the director Director or his delegate. The individual conducting the emission test shall be 
responsible for including with his test results, data which accurately represent the production rate 
during the test. 

(15) Emission rates for wood or fuel burning sources which are expressed in units of pounds per 
million BTU shall be determined by the "Oxygen Based F Factor Procedure" described in 40 
CFR Part 60, Appendix A, Method 19, Section 5. Other procedures described in Method 19 
may be used subject to the approval of the Director, Division of Environmental Management. 
To provide data of sufficient accuracy to use with the F-factor methods, an integrated (bag) 
sample shall be taken for the duration of each test run. In the case of simultaneous testing of 

' multiple ducts, there shall be a separate bag for each sampling train. TTie bag sample shall be 

analyzed with an Orsat analyzer in accordance with Method 3 of Appendix A of 40 CFR Part 
60. (The number of analyses and the tolerance between analyses are specified in Method 3.) 



I 



I 



The specifications indicated in Method 3 for the construction and operation of the bag sampling 
apparatus shall be followed. 

(16) Particulate testing on steam generators that utilize soot blowing as a routine means for cleaning 
heat transfer surfaces shall be conducted so that the contribution of the soot blowing is 
represented as follows: 

(A) If the soot blowing periods are expected to represent less than 50 percent of the total particulate 
emissions, one of the test runs shall include a soot blowing cycle. 

(B) If the soot blowing periods are expected to represent more than 50 percent of the total 
particulate emissions then two of the test runs shall each include a soot blowing cycle. 

Under no circumstances shall all three test runs include soot blowing. The average emission rate 
of particulate matter is calculated by the equation: 

Eavg = Eg S(A ±B1_|_En/^R;S-BS^ 
AR R AR 

Eavg equals the average emission rate in pounds per million Btu for daily operating time. Eg equals 
the average emission rate in pounds per million Btu of sample(s) containing soot blowing. E^ 
equals the average emission rate in pounds per million Btu of sample(s) with no soot blowing. A 
equals hours of soot blowing during sample(s). B equals hours without soot blowing during 
sample(s) containing sootblowing. R equals average hours of operation per 24 hours. S equals 
average hours of soot blowing per 24 hours. If large changes in boiler load or stack flow rate 
occur during soot blowing, other methods of prorating the emission rate may be considered more 
appropriate; for these tests the Director or his designee may approve an alternate method of 
prorating. 

(17) Emissions of volatile organic compounds shall be measured by the appropriate test procedure in 
Section .0900 of this Subchapter. 

(18) Upon prior approval by the Director or his delegate, test procedures different from those 
described in this R e gulation Rule may be used. Furthermore, the Director or his delegate has 



8:11 NORTH CAROLINA REGISTER September 1, 1993 898 



PROPOSED RULES 



the option to prescribe alternate test procedures on an individual basis when he considers that the 
action is necessary to secure reliable test data. In the case of sources for which no test method 
is named, the Director or his delegate has the authority to prescribe or approve methods on an 
individual basis. 

(d) All existing sources of emission shall comply with applicable regulations and standards at the earliest 
possible date. All new sources shall be in compliance prior to beginning operations. 

(e) In addition to any control or manner of operation necessary to meet emission standards in this Section, 
any source of air pollution shall be operated with such control or in such manner that the source shall not 
cause the ambient air quality standards of Section .0400 of this Subchapter to be exceeded at any point 
beyond the premises on which the source is located. When controls more stringent than named in the 
applicable emission standards in this Section are required to prevent violation of the ambient air quality 
standards or are required to create an offset, the permit shall contain a condition requiring these controls. 

(f) Tlie Bubble Concept. A facility with multiple emission sources or multiple facilities within the same 
area may choose to meet the total emission limitation for a given pollutant through a different mix of 
controls than that required by the regulations in this Section or Section .0900 of this Subchapter. 

(1) In order for this mix of alternative controls to be permitted the director Director shall determine 
that the following conditions are met: 

(A) Sources to which Regulation s Rules .0524, .0525, .0530, and .0531 of this Section, the federal 
New Source Performance Standards (NSPS), the federal National Emission Standards for 
Hazardous Air Pollutants (NESHAPS), regulations established pursuant to Section 111 (d) of 
the federal Clean Air Act, or state or federal Prevention of Significant Deterioration (PSD) 
requirements apply, will have emissions no larger than if there were not an alternative mix of 
controls; 

(B) The facility (or facilities) is located in an attainment area or an unclassified area or in an area 
that has been demonstrated to be attainment by the statutory deadlines (with reasonable further 
progress toward attainment) for those pollutants being considered; 

(C) All of the emission sources affected by the alternative mix are in compliance with applicable 
regulations or are in compliance with established compliance agreements; and 

(D) The review of an application for the proposed mix of alternative controls and the enforcement 
of any resulting permit will not require excessive expenditures on the part of the State. 

(2) The owner(s) or operator(s) of the facility (facilities) shall demonstrate to the satisfaction of the 
director Director that the alternative mix of controls is equivalent in total allowed emissions, 
reliability, enforceability, and environmental impact to the aggregate of the otherwise applicable 
individual emission standards; and 

(A) that the alternative mix approach does not interfere with attainment and maintenance of ambient 
air quality standards and does not interfere with the PSD program; this demonstration shall 
include modeled calculations of the amount, if any, of PSD increment consumed or created; 

(B) that the alternative mix approach conforms with reasonable further progress requirements in 
any nonattainment area; 

(C) that the emissions under the alternative mix approach are in fact quantifiable, and trades among 
them are even; 

(D) that the pollutants controlled under the alternative mix approach are of the same criteria 
pollutant categories, except that emissions of some criteria pollutants used in alternative 
emission control strategies are subject to the limitations as defined in 44 FR 71784 (December 
11, 1979), Subdivision D.l.c.ii. 

The demonstrations of equivalence shall be performed with at least the same level of detail as The 
North Carolina State Implementation plan for Air Quality demonstration of attainment for the area 
in question. Moreover, if the facility involves another facility in the alternative strategy, it shall 
complete a modeling demonstration to ensure that air quality is protected. Demonstrations of 
equivalency shall also take into account differences in the level of reliability of the control measures 
or other uncertainties. 

(3) The emission rate limitations or control techniques of each source within the facility (facilities) 
subjected to the alternative mix of controls shall be specified in the facility's (facilities') 
permits(s). 

(4) Compliance schedules and enforcement actions shall not be affected because an application for 



899 8:11 NORTH CAROLINA REGISTER September 1, 1993 



PROPOSED RULES 



an alternative mix of controls is being prepared or is being reviewed. 
(5) The director Director may waive or reduce requirements in this Paragraph up to the extent 
allowed by the Emissions Trading Policy Statement published in the Federal Register of April 
7, 1982, pages 15076-15086, provided that the analysis required by 15 NCAC 2H .0603 (g)(1) 
Subparagraph (g)(1) of this Rule shall support any waiver or reduction of requirements, 
{g} In a permit a pplication for an alternative mix of controls under 15A NCAC 2D .0501(f). the owner 
or operator of the facility shall demonstrate to the satisfaction of the Director that the proposal is^ equivalent 
to the existing requirements of the SIP in total allowed emissions, enforceability, reliability, and 
environmental impact. 

(1) With the exception stated in Subparagraph (2) of this Paragraph, a public hearing shall be held 
before any permit containing alternative emission limitations is issued. The public hearing shall 
be preceded by a 30-day period of public notice during which the agency's analysis and draft 
permit shall be available for public inspection and comment in the appropriate regional office. 
If and when a permit containing these conditions is issued, it will become a part of the SIP as 
an appendix available for inspection at the department's regional offices. Until the U.S. 
Environmental Protection Agency (EPA) approves the SIP revision embodying the permit 
containing an alternative mix of controls, the facility shall continue to meet the otherwise 
applicable existing SIP requirements. The revision will be approved by EPA on the basis of the 
revision's consistency with EPA's "Policy for Alternative Emission Reduction Options Within 
State Implementation Plans" as promulgated in the Federal Register of December 1 1, 1989, pages 
71780-71788, and subsequent rulings. 

(2) The permit applicant(s) may choose to provide a written acknowledgment that the emission rate 
limitations or control techniques allowed under an alternative mix of controls involving only 
volatile organic compounds are fully enforceable by EPA as a part of the SIP and may be 
enforced pursuant to Section 304(a) of the federal Clean Air Act. The acknowledgment shall also 
bind the source owner's successors. If the acknowledgment is provided to the Director, the 
Director will promptly transmit to EPA a copy of the permit application. Before the Director 
issues the permit, there shall be a 30-day period of public notice during which the agency's 
analysis and draft permit shall be available for public inspection and comment in the appropriate 
regional office. If and when such permit is issued, the Director will promptly transmit a copy 
to EPA. The owner or operator of a source located in a nonattainment area for ozone as 
designated by the Environmental Protection Agency may not initiate the use of this option after 
November 30, 1989; he shall follow the procedures set out in Subparagraph (1) of this 
Paragraph. 

Statutory Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0503 PARTICULATES FROM FUEL BURNING INDIRECT HEAT EXCHANGERS 

(a) With the exceptions in Rule .0536 of this Section, emissions of particulate matter from the combustion 
of a fuel that are discharged from any stack or chimney into the atmosphere shall not exceed: 

Allowable Emission Limit 

Maximum Heat Input In For Particulate Matter 

Millon BTU/Hour In Lb/Million BTU 

Up to and Including 10 0.60 

100 0.33 

1,000 0.18 

10,000 and Greater 0.10 

For a heat input between any two consecutive heat inputs stated in the preceding table, the allowable 
emissions of particulate matter shall be calculated by the equation E= 1.090 times Q to the -0.2594 power. 
E = allowable emission limit for particulate matter in lb/million BTU. Q = maximum heat input in million 
BTU/hour. 

(b) This Rule applies to installations in which fuel is burned for the purpose of producing heat or power 
by indirect heat transfer. Fuels include those such as coal, coke, lignite, peat, natural gas, and fuel oils, 



8:11 NORTH CAROLINA REGISTER September 1, 1993 900 



PROPOSED RULES 



but exclude wood and refuse not burned as a fuel. When any refuse, products, or by-products of a 
manufacturing process are burned as a fuel rather than refuse, or in conjunction with any fuel, this allowable 
emission limit shall apply. 

(c) For the purpose of this Rule, the maximum heat input shall be the total heat content of all fuels which 
are burned in a fuel burning indirect heat exchanger, of which the combustion products are emitted through 
a stack or stacks. The sum of maximum heat input of all fuel burning indirect heat exchangers at a plant 
site which are in operation, under construction, or permitted pursuant to Section 15A NCAC 2H .0600 
Subchapter 15A NCAC 2Q , shall be considered as the total heat input for the purpose of determining the 
allowable emission limit for particulate matter for each fuel burning indirect heat exchanger. Fuel burning 
indirect heat exchangers constructed or permitted after February 1, 1983, shall not change the allowable 
emission limit of any fuel burning indirect heat exchanger whose allowable emission limit has previously 
been set. The removal of a fuel burning indirect heat exchanger shall not change the allowable emission 
limit of any fuel burning indirect heat exchanger whose allowable emission limit has previously been 
established. However, for any fuel burning indirect heat exchanger constructed after, or in conjunction 
with, the removal of another fuel burning indirect heat exchanger at the plant site, the maximum heat input 
of the removed fuel burning indirect heat exchanger shall no longer be considered in the determination of 
the allowable emission limit of any fuel burning indirect heat exchanger constructed after or in conjunction 
with the removal. For the purposes of this Paragraph, refuse not burned as a fuel and wood shall not be 
considered a fuel. For residential facilities or institutions (such as military and educational) whose primary 
fuel burning capacity is for comfort heat, only those fuel burning indirect heat exchangers located in the 
same power plant or building or otherwise physically interconnected (such as common flues, steam, or 
power distribution line) shall be used to determine the total heat input. 

(d) The emission limit for fuel burning equipment that bums both wood and other fuels in combination, 
or for wood and other fuel burning equipment that is operated such that emissions are measured on a 
combined basis, shall be calculated by the equation Be = [(EW) (Qw) + (Eo) (Qo)] /Qt. 

(1) Ec = the emission limit for combination or combined emission source(s) in lb/million BTU. 

(2) Ew = plant site emission limit for wood only as determined by Regulation Rule .0504 of this 
Section in lb/million BTU. 

(3) Eo = the plant site emission limit for other fuels only as determined by Paragraphs (a), (b) and 
(c) of this Regulation Rule in lb/million BTU. 

(4) Qw = the actual wood heat input to the combination or combined emission source(s) in BTU/hr. 

(5) Qo = the actual other fuels heat input to the combination or combined emission source(s) in 
BTU/hr. 

(6) Qt = Qw + Qo and is the actual total heat input to combination or combined emission source(s) 
in BTU/hr. 



Statutory Authority^ G.S. 143-215. 3(a)(1): 143-215. 107(a)(5). 



.0524 NEW SOURCE PERFORMANCE 
STANDARDS 

(a) Sources of the following types when subject 
to new source performance standards promulgated 
in 40 CFR Part 60 shall comply with the emission 
standards, monitoring and reporting requirements, 
maintenance requirements, notification and record 
keeping requirements, performance test require- 
ments, test method and procedure provisions, and 
any other provisions, as required therein, rather 
than with any otherwise-applicable Rule in this 
Section which would be in conflict therewith. 
New sources of volatile organic compounds that 
are located in Davidson, Durham, Forsyth, 
Gaston, Guilford, Mecklenburg, or Wake 
Counties, Dutchville Township in Granville 
County, or that part of Davie County bounded by 



the Yadkin River, Dutchmans Creek, North 
Carolina Highway 801, Fulton Creek, and back to 
the Yadkin River shall comply with the following 
requirements, as well as with any applicable 
requirements in Section .0900 of this Subchapter: 

(1) fossil fuel-fired steam generators (40 
CFR 60.1 to 60.49, Subpart D); 

(2) incinerators (40 CFR 60. 1 to 60.39 and 
60.50 to 60.59, Subpart (E); 

(3) Portland cement plants (40 CFR 60. 1 to 
60.39 and 60.60 to 60.69, Subpart F); 

(4) nitric acid plants (40 CFR 60.1 to 
60.39 and 60.70 to 60.79, Subpart G); 

(5) sulfuric acid plants (40 C.F.R. 60.1 to 
60.39 and 60.80 to 60.89, Subpart H); 

(6) asphalt concrete plants (40 CFR 60. 1 to 
60.39 and 60.90 to 60.99, Subpart I); 



901 



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PROPOSED RULES 



(7) petroleum refineries (40 CFR 60.1 to 
60.39 and 60.100 to 60.109, Subpart 

J); 

(8) storage vessels for petroleum liquids for 
which construction, reconstruction, or 
modification commenced after June 1 1 , 
1973, and prior to May 19, 1978 (40 
CFR 60.1 to 60.39 and 60.110 to 
60.119, Subpart K); 

(9) secondary lead smelters (40 CFR 60.1 
to 60.39 and 60. 120 to 60. 129, Subpart 
L); 

(10) secondary brass and bronze ingot 
production plants(40 CFR 60. 1 to 60.39 
and 60.130 to 60.139, Subpart M); 

(11) iron and steel plants (40 CFR 60.1 to 
60.39 and 60.140 to 60.149, Subpart 
N); 

(12) sewage treatment plants (40 CFR 60.1 
to 60.39 and 60. 150 to 60. 159, Subpart 
O); 

(13) phosphate fertilizer industry: wet 
process phosphoric acid plants (40 CFR 
60.1 to 60.39 and 60.200 to 60.209, 
Subpart T); 

(14) phosphate fertilizer industry: 
superphosphoric acid plants (40 CFR 
60.1 to 60.39 and 60.210 to 60.219, 
Subpart U); 

(15) phosphate fertilizer industry: 
diammonium phosphate plants (40 CFR 
60.1 to 60.39 and 60.220 to 60.229, 
Subpart V); 

(16) phosphate fertilizer industry: triple 
superphosphate plants (40 CFR 60.1 to 
60.39 and 60.230 to 60.239, Subpart 
W); 

(17) phosphate fertilizer industry: granular 
triple superphosphate storage facilities 
(40 CFR 60.1 to 60.39 and 60.240 to 
60.249, Subpart X); 

(18) steel industry: electric arc furnaces (40 
CFR 60.1 to 60.39 and 60.270 to 
60.279, Subpart AA); 

(19) coal preparation plants (40 CFR 60. 1 to 
60.39 and 60.250 to 60.259, Subpart 
Y); 

(20) primary copper smelters (40 CFR 60.1 
to 60.39 and 60. 160 to 60. 169, Subpart 

P); 

(21) primary zinc smelters (40 CFR 60.1 to 
60.39 and 60.170 to 60.179, Subpart 

Q); 

(22) primary lead smelters (40 CFR 60.1 to 
60.39 and 60.180 to 60.189, Subpart 



R); 

(23) primary aluminum reduction plants (40 
CFR 60.1 to 60.39 and 60.190 to 
60.199, Subpart S); 

(24) ferroalloy production facilities (40 CFR 
60.1 to 60.39 and 60.260 to 60.269, 
Subpart Z); 

(25) kraft pulp mills (40 CFR 60. 1 to 60.39 
and 60.280 to 60.289, Subpart BB); 

(26) grain elevators (40 CFR 60.1 to 60.39 
and 60.300 to 60.309, Subpart DD); 

(27) lime manufacturing plants (40 CFR 
60.1 to 60.39 and 60.340 to 60.349, 
Subpart HH); 

(28) stationary gas turbines (40 CFR 60. 1 to 
60.39 and 60.330 to 60.339, Subpart 
GG); 

(29) electric utility steam generating units 
(40 CFR 60.1 to 60.39 and 40 CFR 
60.40a to 60.49a, Subpart Da); 

(30) storage vessels for petroleum liquids, 
for which construction, reconstruction, 
or modification commenced after May 
18, 1978 and prior to July 23, 1984 (40 
CFR 60.1 to 60.39 and 40 CFR 
60. 110a to 60.119a, Subpart Ka); 

(31) glass manufacturing plants (40 CFR 
60.1 to 60.39 and 40 CFR 60.290 to 
60.299, Subpart CC); 

(32) lead-acid battery manufacturing (40 
CFR 60. 1 to 60.39 and 40 CFR 60.370 
to 60.379, Subpart KK); 

(33) automobile and light duty truck surface 
coating operations (40 CFR 60. 1 to 
60.39 and 40 CFR 60.390 to 60.399, 
Subpart MM); 

(34) phosphate rock plants (40 CFR 60. 1 to 
60.39 and 40 CFR 60.400 to 60.409, 
Subpart NN); 

(35) ammonium sulfate manufacturing (40 
CFR 60. 1 to 60.39 and 40 CFR 60.420 
to 60.429, Subpart PP); 

(36) surface coating of metal furniture (40 
CFR 60.1 to 60.39 and CFR 60.310 to 
60.319, Subpart BE); 

(37) graphic arts industry; publication 
rotogravure printing (40 CFR 60. 1 to 
60.39 and 40 CFR 60.430 to 60.439, 
Subpart QQ); 

(38) industrial surface coating: large 
appliances (40 CFR 60.1 to 60.39 and 
40 CFR 60.450 to 60.459, Subpart SS); 

(39) metal coil surface coating (40 CFR 60. 1 
to 60.39 and 40 CFR 60.460 to 60.469, 
Subpart TT); 



8:11 



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September 1, 1993 



902 



PROPOSED RULES 



(40) beverage can surface coating industry 
(40 CFR 60.1 to 60.39 and 40 CFR 
60.490 to 60.499, Subpart WW); 

(41) asphalt processing and asphalt roofing 
manufacture (40 CFR 60. 1 to 60.39 and 
40 CFR 60.470 to 60.479, Subpart 
UU); 

(42) bulk gasoline terminals (40 CFR 60. 1 
to 60.39 and 40 CFR 60.500 to 60.509, 
Subpart XX); 

(43) metallic mineral processing plants (40 
CFR 60. 1 to 60.39 and 40 CFR 60.380 
to 60.389, Subpart LL); 

(44) pressure sensitive tape and label surface 
coating operations (40 CFR 60.1 to 
60.39 and 40 CFR 60.440 to 60.449, 
Subpart RR); 

(45) equipment leaks of VOC in the 
synthetic organic chemicals 
manufacturing industry (40 CFR 60.1 
to 60.39 and 40 CFR 60.480 to 60.489, 
Subpart VV); 

(46) equipment leaks of VOC in petroleum 
refineries (40 CFR 60.1 to 60.39 and 
40 CFR 60.590 to 60.599, Subpart 
GGG); 

(47) synthetic fiber production facilities (40 
CFR 60. 1 to 60.39 and 40 CFR 60.600 
to 60.609, Subpart HHH); 

(48) flexible vinyl and urethane coating and 
printing (40 CFR 60. 1 to 60.39 and 40 
CFR 60.580 to 60.589, Subpart FFF); 

(49) petroleum dry cleaners (40 CFR 60. 1 to 
60.39 and 60.620 to 60.629, Subpart 
JJJ); 

(50) onshore natural gas processing plants: 
equipment leaks of volatile organic 
compounds (40 CFR 60.1 to 60.39 and 
60.630 to 60.639, Subpart KKK); 

(51) wool fiberglass insulation 
manufacturing (40 CFR 60.1 to 60.39 
and 60.680 to 60.689, Subpart PPP); 

(52) nonmetallic mineral processing plants 
(40 CFR 60.1 to 60.39 and 60.670 to 
60.679. Subpart OOO); 

(53) steel plants: electric arc furnaces and 
argon-oxygen decarburization vessels 
constructed after August 17, 1983 (40 
CFR 60.1 to 60.39 and 60.270a to 
60.279a, Subpart AAa); 

(54) onshore natural gas processing: SO(2) 
emissions (40 CFR 60.1 to 60.39 and 
60.640 to 60.649, Subpart LLL); 

(55) basic oxygen process steelmaking 
facilities for which construction is 



commenced after January 20, 1983: (40 
CFR 60.1 to 60.39 and 60.140a to 
60.149a, Subpart Na); 

(56) industrial-commercial-institutionafeteam 
generating units (40 CFR 60.1 to 60.39 
and 60.40b to 60.49b, Subpart Db); 

(57) volatile organic liquid storage vessels 
(including petroleum liquid storage 
vessels) for which construction, 
reconstruction, or modification 
commenced after July 23, 1984 (40 
CFR 60.1 to 60.39 and 40 CFR 
60.110b to 60.119b, Subpart Kb); 

(58) rubber tire manufacturing industry (40 
CFR 60. 1 to 60.39 and 40 CFR 60.540 
to 60.549, Subpart BBB); 

(59) industrial surface coating: surface 
coating of plastic parts for business 
machines (40 CFR 60.1 to 60.39 and 
40 CFR 60.720 to 60.729, Subpart 
TTT); 

(60) magnetic tape coating facilities (40 CFR 
60.1 to 60.39 and 40 CFR 60.710 to 
60.719, Subpart SSS); 

(61) volatile organic compound emissions 
from petroleum refinery wastewater 
systems (40 CFR 60.1 to 60.34 and 40 
CFR 60.690 to 60.699, Subpart QQQ); 

(62) volatile organic compound emissions 
from the synthetic organic chemical 
manufacturing industry air oxidation 
unit processes (40 CFR 60.1 to 60.34 
and 40 CFR 60.610 to 60.618, Subpart 

III); 

(63) volatile organic compound emissions 
from synthetic organic chemical 
manufacturing industry distillation 
operations (40 CFR 60.1 to 60.34 and 
40 CFR 60.660 to 60.668, Subpart 
NNN); 

(64) polymeric coating of supporting 
substrates facilities (40 CFR 60.1 to 
60.34 and 40 CFR 60.740 to 60.748, 
Subpart WV); 

(65) small industrial-commercial-institutional 
steam generating units (40 CFR 60.1 to 
60.34 and 40 CFR 60.40c to 60.48c, 
Subpart Dc); 

(66) municipal waste combustors (40 CFR 
60.1 to 60.34 and 40 CFR 60.50a to 
60.59a. Subpart Ea); 

(67) volatile organic emissions from the 
polymer manufacturing industry (40 
CFR 60. 1 to 60.34 and 40 CFR 60.560 
to 60.566 except 40 CFR 60.562-2(c), 



903 



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PROPOSED RULES 



Subpart DDD)- 
(68) calciners and dryers in mineral 
industries(40 CFR 60. 1 to 60.34 and 40 
CFR 60.730 to 60, 737, Subpart 
UULT). 

(b) All requests, reports, applications, 
submittals, and other communications to the 
administrator required under Paragraph (a) of this 
Rule shall be submitted to the Director of the 
Division of Environmental Management rather 
than to the Environmental Protection Agency. 

(c) In the application of this Rule, definitions 
contained in 40 CFR Part 60 shall apply rather 
than those of Section .0100 of this Subchapter 
when conflict exists. 

(d) Paragraphs (a) and (b) of Rule .0601 of 
Subchapter 2H of this Chapter 15A NCAC 2Q 
■0102(b) and .0302(c) and {d) are not applicable to 
any source to which this Rule applies. The owner 
or operator of the source shall apply for and 
receive a permit as required in Paragraph (o) of 
Rule .0601 of Subchapter 2H of thi s Chapter 15A 
NCAC 2Q .0300 or .0500 . 

(e) The Code of Federal Regulations cited in 
this Rule are incorporated by reference and shall 
automatically include any later amendments thereto 
except for categories of sources not referenced in 
Paragraph (a) of this Rule. Categories of sources 
not referenced in Paragraph (a) of this Rule for 
which EPA has promulgated new source perfor- 
mance standards in 40 CFR Part 60, if and when 
incorporated into this Rule, shall be incorporated 
using rule-making procedures. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5); 150B-21.6. 

.0525 NATIONAL EMISSION STANDARDS 
FOR HAZARDOUS AIR 
POLLUTANTS 

(a) Sources emitting pollutants of the following 
types when subject to national emission standards 
for hazardous air pollutants promulgated in 40 
CFR Part 61 shall comply with emission standards, 
monitoring and reporting requirements, mainte- 
nance requirements, notification and record keep- 
ing requirements, performance test requirements, 
test method and procedural provisions, and any 
other provisions, as required therein, rather than 
with any otherwise-applicable Rule in this Section 
which would be in conflict therewith. New sourc- 
es of volatile organic compounds that are located 
in Davidson, Durham, Forsyth, Gaston, Guilford, 
Mecklenburg, or Wake Counties, Dutchville 
Township in Granville County, or that part of 



Davie County bounded by the Yadkin River, 
Dutchmans Creek, North Carolina Highway 801, 
Fulton Creek, and back to the Yadkin River shall 
comply with the following requirements, as well as 
with any applicable requirements in Section .0900 
of this Subchapter: 

(1) asbestos (40 CFR 61.01 to 61.19 and 
61.140 to 61.159, Subpart M, with the 
exception named in 40 CFR 61.157); 

(2) beryllium (40 CFR 61 .01 to 61 . 19 and 
61.30 to 61.39, Subpart C); 

(3) beryllium from rocket motor firing (40 
CFR 61.01 to 61.19 and 61.40 to 
61.49, Subpart D); 

(4) mercury (40 CFR 61.01 to 61.19 and 
61.50 to 61.59, Subpart E); 

(5) vinyl chloride (40 CFR 61.01 to 61.19 
and 61.60 to 61.71, Subpart F); 

(6) equipment leaks (fugitive emission 
sources) of benzene (40 CFR 61.01 to 
61.19 and 61.110 to 61.119, Subpart 

J); 

(7) equipment leaks (fugitive emission 
sources) (of volatile hazardous air 
pollutants) (40 CFR 61.01 to 61.19 and 
61.240 to 61.249, Subpart V); 

(8) inorganic arsenic emissions from glass 
manufacturing plants (40 CFR 61.01 to 
61.19 and 61.160 to 61.169, Subpart 
N); 

(9) inorganic arsenic emissions from 
primary copper smelters (40 CFR 61 .01 
to 61.19 and 61. 170 to 61.179, Subpart 
O); 

(10) inorganic arsenic emissions from 
arsenic trioxide and metallic arsenic 
production facilities (40 CFR 61.01 to 
61.19 and 61.180 to 61.186, Subpart 

P); 

(11) benzene emissions from benzene 
transfer operations (40 CFR 61.01 to 
61.19 and 61.300 to 61.306, Subpart 
BB); 

(12) benzene waste operations (40 CFR 
61.01 to 61.19 and 61.340 to 61.358, 
Subpart FF); 

(13) benzene emissions from coke by- 
product recovery plants (40 CFR 61.01 
to 61.19 and 61.130to 61.139, Subpart 
L); 

(14) benzene emissions from benzene 
storage vessels (40 CFR 61.01 to 61.19 
and 61.270 to 61.277 except 61.273, 
Subpart Y). 

(b) All requests, reports, applications. 



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September 1, 1993 



904 



PROPOSED RULES 



submittals, and other communications to the 
administrator required under Paragraph (a) of this 
Rule shall be submitted to the Director of the 
Division of Environmental Management rather 
than to the Environmental Protection Agency; 
except that all such reports, applications, 
submittals, and other communications to the 
administrator required by 40 CFR 61.145 shall be 
submitted to the Director, Division of 
Epidemiology. 

(c) In the application of this Rule, definitions 
contained in 40 CFR Part 61 shall apply rather 
than those of Section .0100 of this Subchapter 
when conflict exists. 

(d) ParagrnphB (a) and (b) of Rule 15A NCAC 
211 .0601 15A NCAC 2^ .0102(b) and .Q302(c) 
and (d) are not applicable to any source to which 
this Rule applies. The owner or operator of the 
source shall apply for and receive a permit as 
required in Paragraph (c) of Rule 15A NCAC 2H 
t060+ I5A NCAC 2Q .0300 or .0500 . 

(e) The Code of Federal Regulations cited in 
this Rule are incorporated by reference and shall 
automatically include any later amendments thereto 
except for categories of sources not referenced in 
Paragraph (a) of this Rule. Categories of sources 
not referenced in Paragraph (a) of this Rule for 
which EPA has promulgated national emission 
standards for hazardous air pollutants in 40 CFR 
Part 61, if and when incorporated into this Rule, 
shall be incorporated using rule-making 
procedures. 

Statutory Authority G.S. 143-21 5. 3(a) (1); 143- 
215.107(a) (5): 1508-21. 6. 

.0530 PREVENTION OF SIGNIFICANT 
DETERIORATION 

(a) The purpose of the Rule is to implement a 
program for the prevention of significant 
deterioration of air quality as required by 40 CFR 
51.166 as amended October 17, 1988. 

(b) For the purposes of this Rule the definitions 
contained in 40 CFR 51.166(b) and 40 CFR 
51.301 shall apply. The reasonable period 
specified in 40 CFR 51 . 166(b)(3)(ii) shall be seven 
years. The limitation specified in 40 CFR 
51.166(b)(15)(ii)shall not apply. 

(c) All areas of the State shall be classified as 
Class II except that the following areas are Class 
I: 

(1) Great Smoky Mountains National Park; 

(2) Joyce Kilmer Slickrock National 
Wilderness Area; 

(3) Linville Gorge National Wilderness 



Area; 

(4) Shining Rock National Wilderness 
Area; 

(5) Swanquarter National Wilderness Area. 

(d) Redesignations of areas to Class I or II may 
be submitted as state proposals to the 
Administrator of the Environmental Protection 
Agency (EPA), if the requirements of 40 CFR 
51.166(g)(2) are met. Areas may be proposed to 
be redesignated as Class III, if the requirements of 
40 CFR 51.166(g)(3) are met. Redesignations 
may not, however, be proposed which would 
violate the restrictions of 40 CFR 51.166(e). 
Lands within the boundaries of Indian Reservations 
may be redesignated only by appropriate Indian 
Governing Body. 

(e) In areas designated as Class I, II, or III, 
increases in pollutant concentration over the 
baseline concentration shall be limited to the 
values set forth in 40 CFR 51.166(c). However, 
concentration of the pollutant shall not exceed 
standards set forth in 40 CFR 51.166(d). 

(f) Concentrations attributable to the conditions 
described in 40 CFR 51.166(f)(1) shall be 
excluded in determining compliance with a 
maximum allowable increase. However, the 
exclusions referred to in 40 CFR 5 1 . 166(f)(l)(i) or 
(ii) shall be limited to five years as described in 40 
CFR 51.166(f)(2). 

(g) Major stationary sources and major 
modifications shall comply with the requirements 
contained in 40 CFR 51 . 166(i) and by extension in 
40 CFR 51.166(j) through (o). The transition 
provisions allowed by 40 CFR 52.21 (i)(l l)(i) and 
(ii) and (m)(l)(vii) and (viii) are hereby adopted 
under this Rule. The minimum requirements 
described in the portions of 40 CFR 51.166 
referenced in this Paragraph are hereby adopted as 
the requirements to be used under this Rule, 
except as otherwise provided in this Rule. 
Wherever the language of the portions of 40 CFR 
51.166 referenced in this Paragraph speaks of the 
"plan," the requirements described therein shall 
apply to the source to which they pertain, except 
as otherwise provided in this Rule. Whenever the 
portions of 40 CFR 51.166 referenced in this 
Paragraph provide that the State plan may exempt 
or not apply certain requirements in certain 
circumstances, those exemptions and provisions of 
nonapplicability are also hereby adopted under this 
Rule. However, this provision shall not be 
interpreted so as to limit information that may be 
requested from the owner or operator by the 
Director as specified in 40 CFR 51.166(n)(2). 

(h) Paragraphs (a) and (b) of 15A NCAC 2H 



905 



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September 1, 1993 



PROPOSED RULES 



-Mm ISA NCAC 2Q .01020?) and (c) and 
■0302rb) and (c) are not applicable to any source 
to which this Rule applies. The owner or operator 
of the sources Sources to which this Rule applies 
shall apply for and receive a permit as required in 
Paragraph (c) of 15A NCAC 2H .0601 15A 
NCAC 2Q .0300 or .0500 . 

(i) When a particular source or modification 
becomes a major stationary source or major 
modification solely by virtue of a relaxation in any 
enforceable limitation which was established after 
August 7, 1980, on the capacity of the source or 
modification to emit a pollutant, such as a 
restriction on hours of operation, then the 
provisions of this Rule shall apply to the source or 
modification as though construction had not yet 
begun on the source or modification. 

(j) Volatile organic compounds exempted from 
coverage in Subparagraph (c) (5) of Rule .0531 of 
this Section shall also be exempted when 
calculating source applicability and control 
requirements under this Rule. 

(k) The degree of emission limitation required 
for control of any air pollutant under this Rule 
shall not be affected in any manner by: 

(1) that amount of a stack height, not in 
existence before December 31, 1970, 
that exceeds good engineering practice; 
or 

(2) any other dispersion technique not 
implemented before then. 

(1) A substitution or modification of a model as 
provided for in 40 CFR 51 . 166 (1) shall be subject 
to public comment procedures in accordance with 
the requirements of 40 CFR 51 . 166(q). 

(m) Permits may be issued on the basis of 
innovative control technology as set forth in 40 
CFR 51.166(s)(l) if the requirements of 40 CFR 
51.166(s)(2) have been met, subject to the 
condition of 40 CFR 51.166(s)(3), and with the 
allowance set forth in 40 CFR 51.166(s)(4). 

(n) If a source to which this Rule applies 
impacts an area designated Class I by requirements 
of 40 CFR 51.166(e), notice to EPA will be 
provided as set forth in 40 CFR 51.166(p)(l). If 
the Federal Land Manager presents a 
demonstration described in 40 CFR 51.166(p)(3) 
during the public comment period or public 
hearing to the Director and if the Director concurs 
with this demonstration, the permit application 
shall be denied. Permits may be issued on the 
basis that the requirements for variances as set 
forth in 40 CFR 51 . 166(p)(4), (p)(5) and (p)(7), or 
(p)(6) and (p)(7) have been satisfied. 

(o) A permit application subject to this Rule 



shall be processed in accordance with the 
procedures and requirements of 40 CFR 51 . 166(q). 
Within 30 days of receipt of the application, 
applicants will be notified if the application is 
complete as to initial information submitted. 
Notwithstanding this determination, the 90-day 
period provided for the Commission to act by G.S. 
143-215. 108(b) shall be considered to begin at the 
end of the period allowed for public comment, at 
the end of any public hearing held on the 
application, or when the applicant supplies 
information requested by the Director in answer to 
comments received during the comment period or 
at any public hearing, whichever is later. The 
Director shall notify the Administrator of EPA of 
any application considered approved by expiration 
of the 90 days; this notification shall be made 
within 10 working days of the date of expiration. 
If no permit action has been taken when 70 days of 
the 90-day period have expired, the Commission 
shall relinquish its prevention of significant 
deterioration (PSD) authority to EPA for that 
permit. The Commission shall notify by letter the 
EPA Regional Administrator and the applicant 
when 70 days have expired. EPA will then have 
responsibility for satisfying unmet PSD 
requirements, including permit issuance with 
appropriate conditions. The permit applicant must 
secure from the Commission, a permit revised (if 
necessary) to contain conditions at least as 
stringent as those in the EPA permit, before 
beginning construction. Commencement of 
construction before full PSD approval is obtained 
constitutes a violation of this Rule. 

(p) Approval of an application with regard to the 
requirements of this Rule shall not relieve the 
owner or operator of the responsibility to comply 
fully with applicable provisions of other rules of 
this Chapter and any other requirements under 
local, state, or federal law. 

(q) When a source or modification subject to 
this Rule may affect the visibility of a Class I area 
named in Paragraph (c) of this Rule, the following 
procedures shall apply: 

(1) The Director shall provide written 
notification to all affected Federal Land 
Managers within 30 days of receiving 
the permit application or within 30 days 
of receiving advance notification of an 
application. The notification shall be at 
least 30 days prior to the publication of 
notice for public comment on the 
application. The notification shall 
include a copy of all information 
relevant to the permit application 



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PROPOSED RULES 



including an analysis provided by the 
source of the potential impact of the 
proposed source on visibility. 

(2) The Director shall consider any analysis 
concerning visibility impairment 
performed by the Federal Land 
Manager if the analysis is received 
within 30 days of notification. If the 
Director finds that the analysis of the 
Federal Land Manager fails to 
demonstrate to his satisfaction that an 
adverse impact on visibility will result 
in the Class I area, the Director shall 
provide in the notice of public hearing 
on the application, an explanation of his 
decision or notice as to where the 
explanation can be obtained. 

(3) The Director may require monitoring of 
visibility in or around any Class I area 
by the proposed new source or 
modification when the visibility impact 
analysis indicates possible visibility 
impairment. 

(r) Revisions of the North Carolina State 
Implementation Plan for Air Quality shall comply 
with the requirements contained in 40 CFR 
51.166(a)(2). 

(s) The version of the Code of Federal 
Regulations incorporated in this Rule is that as of 
January 1, 1989, and does not include any 
subsequent amendments or additions to the 
referenced material. 

Statutory Authority G.S. ] 43-21 5. 3(a)(1); 143- 
215.107(a)(3); 143-215. 107(a)(5); 143- 
215.107(a)(7); 143-21 5. 108(b); 150B-21.6. 

.0531 SOURCES IN NONATTAINMENT 
AREAS 

(a) This Rule applies to certain new major 
stationary sources and major modifications which 
are located in an area which is designated by the 
U.S. Environmental Protection Agency (EPA) to 
be a nonattainment area as of May 1, 1982. 

(h) For the purpose of this Rule the definitions 
contained in 40 CFR 51.165(a)(1) and 40 CFR 
51.301 shall apply. The reasonable period 
specified in 40 CFR 5 1 . 165(a)( 1 )(vi)(C)( 1 ) shall be 
seven years. 

(c) This Rule is not applicable to: 

(1) complex sources of air pollution that 
are regulated only under Section .0800 
of this Subchapter and not under any 
other rule in this Subchapter; 

(2) emission of pollutants at the new major 



stationary source or major modification 
located in the nonattainment area which 
are pollutants other than the pollutant or 
pollutants for which the area is 
nonattainment. (A major stationary 
source or major modification that is 
major for volatile organic compounds is 
also major for ozone.); 

(3) emission of pollutants for which the 
source or modification is not major; 

(4) a new source or modification which 
qualifies for exemption under the 
provision of 40 CFR 51.165(a)(4); and 

(5) emission of the following volatile 
organic compounds: 

(A) methane, 

(B) ethane, 

(C) trichlorofluoromethane 
(chlorofluorocarbon 11), 

(D) dichlorodifluoromethane 
(chlorofluorocarbon 12), 

(E) chlorodifluoromethane 
(chlorofluorocarbon 22), 

(F) trifluoromethane (fluorocarbon 23), 

(G) trichlorotrifluoroethane 
(chlorofluorocarbon 113), 

(H) dichlorotetrafluoroethane 

(chlorofluorocarbon 114), 
(I) chloropentafluoroethane 

(chlorofluorocarbon 115), 
(J) 1 , 1 , 1-trichloroethane (methyl 

chloroform), 
(K) dichloromethane(methylenechloride), 
(L) dichlorotrifluoroethane 

(hydrochlorofluorocarbon 123), 
(M) tetrafluoroethane (hydrofluorocarbon 

1 34a), 
(N) dichlorofluoroethane 

(liydrochlorofluorocarbon 141b), and 
(O) chlorodifluoroethane 

(liydrochlorofluorocarbon 142b). 

(d) Paragraphs (a) and (1>) of 15A NCAC 2H 
T^^W- ISA NCAC 2Q .0102(b) and (c) and 
.0302rb) and (c) are not applicable to any source 
to which this Rule applies. The owner or operator 
of the source shall apply for and receive a permit 
as required in Paragraph (c) of 15A NCAC 2H 
T«604- J5A NCAC 2Q -0300 or .0500 . 

(e) To issue a permit to a source to which this 
Rule applies, the director Director shall determine 
that the source will meet the following 
requirements: 

(1) The source will emit the nonattainment 
pollutant at a rate no more than the 
lowest achievable emission rate. 



907 



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PROPOSED RULES 



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(2) The owner or operator of the proposed 
new or modified source has 
demonstrated that all major stationary 
sources in the State which are owned or 
operated by this person (or any entity 
controlling, controlled by, or under 
common control with this person) are 
subject to emission limitations and are 
in compliance, or on a schedule for 
compliance which is federally 
enforceable or contained in a court 
decree, with all applicable emission 
limitations and standards of this 
Subchapter which EPA has authority to 
approve as elements of the North 
Carolina State Implementation Plan for 
Air Quality. 

(3) The source will obtain sufficient 
emission reductions of the 
nonattainment pollutant from other 
sources in the nonattainment area so 
that the emissions from the new source 
will be less than the emissions 
reductions. The baseline for this 
emission offset shall be the actual 
emissions of the source from which 
offset credit is obtained. Emission 
reductions must not include any 
reductions resulting from compliance 
(or scheduled compliance) with 
applicable rules in effect prior to the 
application. The difference between the 
emissions from the new source and the 
emission reductions must be sufficient 
to represent reasonable further progress 
toward attaining the Ambient Air 
Quality Standards. The emissions 
reduction credits must also conform to 
the provisions of 40 CFR 
5 1.165(a)(3)(ii)(A) through (G). 

(4) The North Carolina State 
Implementation Flan for Air Quality is 
being carried out for the nonattainment 
area in which the proposed source is 
located. 

(f) When a particular source or modification 
becomes a major stationary source or major 
modification solely by virtue of a relaxation in any 
enforceable limitation established after August 7, 
1980, on the capacity of the source or modification 
to emit a pollutant, such as a restriction on hours 
of operation, then the provisions of this Rule shall 
apply to the source or modification as though 
construction had not yet begun on the source or 
modification. 



(g) To issue a permit to a source of a 
nonattainment pollutant for which the state has 
demonstrated to the satisfaction of the 
Administrator of EPA that attainment is not 
possible in the area within the period prior to 
December 31, 1982, despite the implementation of 
all reasonably available measures, the Director 
shall determine, in addition to the other 
requirements of this Rule, that an analysis 
(produced by the permit applicant) of alternative 
sites, sizes, production processes, and 
environmental control techniques for source 
demonstrates that the benefits of the source 
significantly outweigh the environmental and social 
costs imposed as a result of its location, 
construction, or modification. 

(h) Approval of an application with regard to the 
requirements of this Rule shall not relieve the 
owner or operator of the responsibility to comply 
fully with applicable provisions of other rules of 
this Chapter and any other requirements under 
local, state, or federal law. 

(i) When a source or modification subject to this 
Rule may affect the visibility of a Class I area 
named in Paragraph (c) of Rule .0530 of this 
Section, the following procedures shall be 
followed: 

(1) The owner or operator of the source 
shall provide an analysis of the 
impairment to visibility that would 
occur as a result of the source or 
modification and general commercial, 
industrial and other growth associated 
with the source or modification. 

(2) The Director shall provide written 
notification to all affected Federal Land 
Managers within 30 days of receiving 
the permit application or within 30 days 
of receiving advance notification of an 
application. The notification shall be at 
least 30 days prior to the publication of 
the notice for public comment on the 
application. The notification shall 
include a copy of all information 
relevant to the permit application 
including an analysis provided by the 
source of the potential impact of the 
proposed source on visibility. 

(3) The Director shall consider any analysis 
concerning visibility impairment 
performed by the Federal Land 
Manager if the analysis is received 
within 30 days of notification. If the 
Director finds that the analysis of the 
Federal Land Manager fails to 



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908 



PROPOSED RULES 



demonstrate to his satisfaction that an 
adverse impact on visibility will result 
in the Class I area, the Director shall 
provide in the notice of public hearing 
on the application, an explanation of his 
decision or notice as to where the 
explanation can be obtained. 

(4) The Director shall only issue permits to 
those sources whose emissions will be 
consistent with making reasonable 
progress towards the national goal of 
preventing any future, and remedying 
any existing, impairment of visibility in 
mandatory Class I areas when the 
impairment results from man-made air 
pollution. In making the decision to 
issue a permit, the Director shall 
consider the cost of compliance, the 
time necessary for compliance, the 
energy and nonair quality 
environmental impacts of compliance, 
and the useful life of the source. 

(5) The Director may require monitoring of 
visibility in or around any Class I area 
by the proposed new source or 
modification when the visibility impact 
analysis indicates possible visibility 
impairment. 

The requirements of this Paragraph shall not apply 
to nonprofit health or nonprofit educational 
institutions. 

(j) The version of the Code of Federal 
Regulations incorporated in this Rule is that as of 
January 1, 1989, and does not include any 
subsequent amendments or additions to the 
referenced material. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5): 143-215.108(1}}: 150B-21.6. 

.0532 SOURCES CONTRIBUTING 

TO AN AMBIENT VIOI^'aTION 

(a) This Rule applies to certain new major 
stationary sources and major modifications which 
are located in an area which is designated by the 
U.S. Environmental Protection Agency (EPA) to 
be an attainment or unclassifiable area as of May 
1, 1983, and which would contribute to a violation 
of a national ambient air quality standard but 
which would not cause a new violation. 

(b) For the purpose of this Rule the definitions 
contained in Section II. A. of Appendix S of 40 
CFR Part 51 shall apply. 

(c) The Rule is not applicable to: 

(1) complex sources of air pollution that 



are regulated only under Section .0800 
of this Subchapter and not under any 
other rule of this Subchapter; 

(2) emission of pollutants for which the 
area in which the new or modified 
source is located is designated as 
nonattainment; 

(3) emission of pollutants for which the 
source or modification is not major; 

(4) emission of pollutants other than sulfur 
dioxide, total suspended particulates, 
nitrogen oxides, and carbon monoxide; 

(5) a new or modified source whose impact 
will increase not more than: 

(A) 1 .0 ug/m' of SO; on an annual basis, 

(B) 5 ug/m^ of SO, on a 24-hour basis, 

(C) 25 nglm" of SO, on a 3-hour basis, 

(D) 1 .0 ug/m^ of total suspended 
particulates on an annual basis, 

(E) 5 ug/m' of total suspended 
particulates on a 24-hour basis, 

(F) 1 .0 ug/m^ of NOj on an annual basis, 

(G) 0.5 mg/m' of carbon monoxide on an 
8-hour basis, 

(H) 2 mg/m' of carbon dioxide on a one- 
hour basis, 

(I) 1.0 ug/m' of PMIO on an annual 
basis, or 

(J) 5 ug/m' of PMIO on a 24-hour basis, 

at any locality that does not meet a national 

ambient air quality standard; 

(6) sources which are not major unless 
secondary emissions are included in 
calculating the potential to emit; 

(7) sources which are exempted by the 
provision in Section II. F. of Appendix 
S of 40 CFR Part 51; 

(8) temporary emission sources which will 
be relocated within two years; and 

(9) emissions resulting from the 
construction phase of the source. 

(d) Paragraphs (a) and Co) of 15A NCAC 2H 
t0604- i5A NCAC 2Q. .0102(b) and (c) and 
.0302(13) and (c) are not applicable to any source 
to which this Rule applies. The owner or operator 
of the source shall apply for and receive a permit 
as required in Paragraph (c) of 15A NCAC 2H 
t0604- 15A NCAC 20 .0300 or .0500 . 

(e) To issue a permit to a new or modified 
source to which this Rule applies, the Director 
shall determine that the source will meet the 
following conditions: 

(1) The sources v.ill emit the nonattainment 
pollutant at a rate no more than the 
lowest achie\'able emission rate. 



909 



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September 1, 1993 



PROPOSED RULES 



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(2) The owner or operator of the proposed 
new or modified source has 
demonstrated that all major stationary 
sources in the State which are owned or 
operated by this person (or any entity 
controlling, controlled by, or under 
common control with this person) are 
subject to emission limitations and are 
in compliance, or on a schedule for 
compliance which is federally 
enforceable or contained in a court 
decree, with all applicable emission 
limitations and standards of this 
Subchapter which EPA has authority to 
approve as elements of the North 
Carolina State Implementation Plan for 
Air Quality. 

(3) The source will satisfy one of the 
following conditions: 

(A) The source will comply with Part 
(e)(3) of Rule .0531 of this Section 
when the source is evaluated as if it 
were in the nonattainment area; or 

(B) The source will have an air quality 
offset, i.e., the applicant will have 
caused an air quality improvement in 
the locality where the national 
ambient air quality standard is not met 
by causing reductions in impacts of 
other sources greater than any 
additional impact caused by the 
source for which the application is 
being made. The emissions reductions 
creating the air quality offset shall be 
placed as a condition in the permit for 
the source reducing emissions. The 
requirements of this Part may be 
partially waived if the source is a 
resource recovery facility burning 
municipal solid waste, the source 
must switch fuels due to lack of 
adequate fuel supplies, or the source 
is required to be modified as a result 
of EPA regulations and no exemption 
from such regulations is available and 
if: 

(i) the permit applicant demonstrates 
that it made its best efforts to 
obtain sufficient air quality offsets 
to comply with this Part; 

(ii) the applicant has secured all 
available air quality offsets; and 

(iii) the applicant will continue to seek 
the necessary air quality offsets 
and apply them when they become 



available. 

(f) At such time that a particular source or 
modification becomes a major stationary source or 
major modification solely by virtue of a relaxation 
in any enforceable limitation established after 
August 7, 1980, on the capacity of the source or 
modification to emit a pollutant, such as a 
restriction on hours of operation, then the 
provisions of this Rule shall apply to the source or 
modification as though construction had not yet 
begun on the source or modification. 

(g) The version of the Code of Federal Regula- 
tions incorporated in this Rule is that as of January 
1, 1989, and does not include any subsequent 
amendments or additions to the referenced materi- 
al. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(5): 143-215. 108(b); 150B-21.6. 

.0533 STACK HEIGHT 

(a) For the purpose of this Regulation Rule , the 
following definitions apply: 

(1) "Stack" means any point in a source 
designed to emit solids, liquids, or 
gases into the air, including a pipe or 
duct but not including flares. 

(2) "A stack in existence" means that the 
owner or operator had: 

(A) begun, or caused to begin, a continu- 
ous program of physical on-site con- 
struction of the stack; or 

(B) enter into binding agreements or 
contractual obligations, which could 
not be cancelled or modified without 
substantial loss to the owner or opera- 
tor, to undertake a program of con- 
struction of the stack to be completed 
in a reasonable time. 

(3) "Dispersion technique" 

(A) "Dispersion technique" means any 
technique which attempts to affect the 
concentration of a pollutant in the 
ambient air by: 
(i) using that portion of a stack 
which exceeds good engineering 
practice stack height, 
(ii) varying the rate of emission of a 
pollutant according to atmospheric 
conditions or ambient concentra- 
tions of that pollutant, or 
(iii) increasing final exhaust gas plume 
rise by manipulating source pro- 
cess parameters, exhaust gas 
parameters, stack parameters, or 



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September 1, 1993 



910 



PROPOSED RULES 



combining exhaust gases from 
several existing stacks into one 
stack; or other selective handling 
of exhaust gas streams so as to 
increase the exhaust gas plume 
rise. 
(B) "Dispersion technique" does not 
include: 

(i) the reheating of a gas stream, 
following use of a pollution 
control system, for the purpose of 
returning the gas to the 
temperature at which it was 
originally discharged from the 
facility generating the gas stream; 

(ii) the using of smoke management 
in agricultural or silvicultural 
prescribed burning programs; 

(iii) the merging of exhaust gas 
streams where: 

(I) The facility owner or operator 
demonstrates that the source 
was originally designed and 
constructed with such merged 
gas streams; 

(II) After July 8, 1985, such 
merging is part of a change in 
operation at the facility that 
includes the installation of 
pollution controls and is 
accompanied by a net 
reduction in the allowable 
emissions of a pollutant. This 
exclusion from the definition 
of "dispersion techniques" 
shall apply only to the 
emission limitation for the 
pollutant affected by such 
change in operation; or 

(III) Before July 8, 1985, such 
merging was part of a change 
in operation at the source that 
included the installation of 
emissions control equipment or 
was carried out for sound 
economic or engineering 
reasons. Where there was an 
increase in the emission 
limitation or in the event that 
no emission limitation was in 
existence prior to the merging, 
an increase in the quantity of 
pollutants actually emitted 
prior to the merging, the 
director Director shall presume 



that merging was significantly 

motivated by an intent to gain 

emissions credit for greater 

dispersion. Absent a 

demonstration by the source 

owner or operator that 

merging was not significantly 

motivated by such intent, the 

director Director shall deny 

credit for the effects of such 

merging in calculating the 

allowable emissions for the 

source; 

(iv) Episodic restrictions on residential 

woodbuming and open burning 

or; 

(v) Techniques under Subpart (A)(iii) 

of this Subparagraph which 

increase final exhaust gas plume 

rise where the resulting allowable 

emissions of sulfur dioxide from 

the facility do not exceed 5,000 

tons per year. 

(4) "Good engineering practice (GEP) stack 

height" means the greater of: 

(A) 65 meters measured from the ground- 
level elevation at the base of the 
stack; 

(B) 2.5 times the height of nearby 
structure(s) measured from the 
ground-level elevation at the base of 
the stack for stacks in existence on 
January 12, 1979 and for which the 
owner or operator had obtained all 
applicable permit or approvals 
required under 15 NCAC 2H .0600 
15A NCAC 2Q and 40 CFR Parts 51 
and 52, provided the owner or 
operator produces evidence that this 
equation was actually relied on in 
establishing an emission limitation; 

(C) for stacks not covered under Part (B) 
of this Subparagraph, the height of 
nearby structure(s) measured from the 
ground-level elevation at the base of 
the stack plus 1.5 times the lesser 
dimension (height or projected width) 
of nearby structure(s) provided that 
the director Director may require the 
use of a field study or fluid model to 
verify GEP stack height for the 
source; or 

(D) the height demonstrated by a fluid 
model or a field study approved by 
the director Director, which ensures 



911 



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September 1, 1993 



PROPOSED RULES 



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that the emissions from a stack do not 
result in excessive concentrations of 
any air pollutant as a result of 
atmospheric downwash, wakes, or 
eddy effects created by the source 
itself, nearby structures or nearby 
terrain features. 

(5) "Nearby" means, for a specific 
structure or terrain feature: 

(A) under Parts (4)(B) and (C) of this 
Paragraph, that distance up to five 
times the lesser of the height or the 
width dimension of a structure but not 
greater than one-half mile. The 
height of the structure is measured 
from the ground-level elevation at the 
base of the stack. 

(B) under Part (4)(D) of this Paragraph, 
not greater than one-half mile, except 
that the portion of a terrain feature 
may be considered to be nearby which 
falls within a distance of up to 10 
times the maximum height [H, ] of the 
feature , not to exceed two miles if 
such feature achieves a height [h, ] 
one-half mile from the stack that is at 
least 40 percent of the GEP stack 
height determined by Part (4)(C) of 
this Paragraph or 26 meters, 
whichever is greater, as measured 
from the ground-level elevation at the 
base of the stack. The height of the 
structure or terrain feature is 
measured from the ground-level 
elevation at the base of the stack. 

(6) "Excessive concentrations" means, for 
the purpose of determining good 
engineering practice stack height under 
Part (4)(D) of this Paragraph: 

(A) for sources seeking credit for stack 
height exceeding that established 
under Part (4)(B) or (C) of this 
Paragraph, a maximum ground-level 
concentration due to emissions from a 
stack due in whole or part to 
downwash, wakes, and eddy effects 
produced by nearby structures or 
nearby terrain features which 
individually is at least 40 percent in 
excess of the maximum concentration 
experienced in the absence of such 
downwash, wakes, or eddy effects 
and which contributes to a total 
concentration due to emissions from 
all sources that is greater than an 



ambient air quality standard. For 
sources subject to Regulation Rule 
.0530 of this Section, an excessive 
concentration alternatively means a 
maximum ground-level concentration 
due to emissions from a stack due in 
whole or part to downwash, wakes, or 
eddy effects produced by nearby 
structures or nearby terrain features 
which individually is at least 40 
percent in excess of the maximum 
concentration experienced in the 
absence of such downwash, wakes, or 
eddy effects and greater than a 
prevention of significant deterioration 
increment. The allowable emission 
rate to be used in making 
demonstrations under this part shall 
be prescribed by the new source 
performance standard that is 
applicable to the source category 
unless the owner or operator 
demonstrates that this emission rate is 
infeasible. Where such 

demonstrations are approved by the 
director Director , an alternative 
emission rate shall be established in 
consultation with the source owner or 
operator; 

(B) for sources seeking credit after 
October 11, 1983, for increases in 
existing stack heights up to the 
heights established under Part (4)(B) 
or (C) of this Paragraph: 

(i) a maximum ground-level 
concentration due in whole or part 
to downwash, wakes or eddy 
effects as provided in Part (A) of 
this Subparagraph, except that the 
emission rate specified by any 
applicable Regulation Rule in this 
Subchapter (or, in the absence of 
such a limit, the actual emission 
rate) shall be used, or 

(ii) the actual presence of a local 
nuisance caused by the existing 
stack, as determined by the 
dir e ctor Director ; and 

(C) for sources seeking credit after 
January 12, 1979, for a stack height 
determined under Part (4)(B) or (C) 
of this Paragraph where the director 
Director requires the use of a field 
study or fluid model to verify GEP 
stack height, for sources seeking stack 



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September 1, 1993 



912 



PROPOSED RULES 



height credit after November 9, 1984 

based on the aerodynamic influence of 

cooling towers, and for sources 

seeking stack height credit after 

December 31, 1970 based on the 

aerodynamic influence of structures 

not adequately represented by Part 

(4)(B) or (C) of this Paragraph, a 

maximum ground-level concentration 

due in whole or part to down wash, 

wakes, or eddy effects that is at least 

40 percent in excess of the maximum 

concentration experienced in the 

absence of such downwash, wakes, or 

eddy effects. 

(7) "Emission limitation" means a 

requirement established by this 

Subchapter or a local air quality 

program certified by the Commission 

that limits the quantity, rate, or 

concentration of emissions of air 

pollutants on a continuous basis, 

including any requirements that limit 

the level of opacity, prescribe 

equipment, set fuel specifications, or 

prescribe operation or maintenance 

procedures for a source to assure 

continuous emission reduction. 

(b) With the exception stated in Paragraphs (c) 
and (d) of this Rule, the degree of emission 
limitations required by any regulation in this 
Subchapter shall not be affected by: 

(1) that amount of a stack height that 
exceeds good engineering practice; or 

(2) any other dispersion technique. 

(c) Paragraph (b) shall not apply to: 

(1) stack heights in existence or dispersion 
techniques implemented before 
December 31, 1970, except where 
pollutants are being emitted from such 
stacks or using such dispersion 
techniques by sources.' as defined in 
Section 1 1 1(a)(3) of the Clean Air Act, 
which were constructed, or 
reconstructed, or for which major 
modifications, as defined in Regulations 
Rules .0530 (b) and .0531 (b) of this 
Section were carried out after 
December 31, 1970; or 

(2) coal-fired steam electric generating 
units, subject to provisions of Section 
1 18 of the federal Clean Air Act, which 
began operation before July 1, 1957, 
and whose stacks were constructed 
under a construction contract awarded 



before February 8, 1974. 
However, these exemptions shall not apply to a 
new stack that replaces a stack that is exempted by 
Subparagraphs (1) and (2) of this Paragraph. 
These exemptions shall not apply to a new source 
using a stack that is exempted by Subparagraphs 
(1) and (2) of this Paragraph. 

(d) This Regulation Rule shall not restrict the 
actual stack height of any source. 

Statutory Authority G.S. 143-215. 3(a)(1). 

SECTION .0600 - AIR POLLUTANTS: 
MONITORING: REPORTING 

.0601 PURPOSE AND SCOPE 

(a) The purpose of this Section is to set forth the 
requirements of the commission relating to 
monitoring air pollution emissions and filing 
reports covering their discharge into the outdoor 
atmosphere of the state. 

(b) This Section shall apply to all persons 
subject to the provisions of Section 15 NCAC 2H 
-:Qim 15A NCAC 20. 

(c) Monitoring may also be required by other 
regulations including .0524 and .0525 of this 
Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.68. 

SECTION .0800 - TRANSPORTATION 
FACILITIES 

.0801 PURPOSE AND SCOPE 

(a) The purpose of this Section is to set forth 
requirements of the commission Commission 
relating to construction or modification of a 
transportation facility;; — building, — structure, — ©f 
installation or combination thereof which may 
result in violation — ef an ambient air quality 
standards standard being exceeded . 

(b) For purposes of this Section any 
transportation facility which on November 15, 
1973. is under construction , or is being installed, 
or is the subject of a contract for constructionT 
installation or purchase, prior to November 15, 
1973, shall not be considered to be a new air 
pollution source. 

(c) Approval to construct or modify an indirect 
a transportation facility source shall not relieve any 
owner or developer of the transportation facility 
operator of the responsibility to comply with the 
state control strategy and all local and state 
regulations which are part of the North Carolina 



913 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RfLES 



State Implementation Plan for .Air Quality'. 

Statutory Authority G.S. 143-215. 3<a)(lj: 143- 
215.109. 

.0802 DEFINTTTONS 

For the purposes of this Section, the following 
definitions applv: 

(1) "Construction" means anv activit\' 
follov.ing land clearing or grading that 
engages in a program of construction 
specificalh designed for a transportation 
facilit\' in preparation for the fabrication- 
erection, or installation of the building 
components associated with the 
transportation facilitw e.g. curbing, 
footings, conduit, paving, etc. 

(2) "OwTier or developer" means anv person 
who owns, leases, develops, or controls 
a transportation facility-. 

(3) "Transportation facility'" means a 
comple.x source as defme-d in G.S. 143- 
213(22) and is subject to the 
requirements of this Section. 

(a) A person shall not construct or modif\- any 
facility' which result in: 



«- 



open 



parlcins 



teter- 



including 



tst- 



shopping — center lots, having 1.50O or 
more — vehicle — capacity-. — asd — parking 

decks. including — shopping center 

decks and parking — garages. — having 

capacit\- for ^50 or more ' ■ chicles; 
subdivisions. — housing — dc/elopments. 
apartment complexes, and trailer courts 
having 500 or more — units resulting — m 
a — population — density — &f — "^.680 — pef 
square mile (12 persons per acrei or 
more: 

stadiums and sports arenas ha' < ing a 

seating capacity of 25.(XX3 or more or 

8.QQQ vehicle parking spaces or more: 

drive in theaters having "^00 or more 

parking spaces; or 

^ amusement parks and recreation areas 

designed to serve 25. (XX) persons per 

day — ef — more. — ef — te — accommodate 

parking of 8. (XX) vehicles or more; until 

ht — bas — applied — for and — rec e ived — a 

p e rmit from the Commission, and has 

complied with any and all terms and 

conditions therein. 

fbs — j ' Vll applications for permits to construct or 

modifv' a complex source shall be made on forms 

provided by the Commission. — The Commission 

may require the owner of the source to conduct air 



t^ 



t4h 



qualir; monitoring and pc-rform dispersion and 
diffusion analysis to predict impact of proposed 
construction or modification on air quality-. 



Before — tfee — Commission — approves 



disapproves the construction or modification of any 
complex source, the information submirtcd by the 
owner or operator, as ' ^ cll as the agency's analysis 
of the effect on ambient air qualiry i including the 
agency's — prcliminori — approval — or disapproxali. 
shall be made a^^ailablc for public inspection in at 
least one location in the region affected. — ftts 
shall be accomplished by publishing a — notice by 
prominent advertisement in the region affected. A 
30 day period for submittal of public comment 
shall be olio v . cd. 

+di ¥be — Commission shall — not appro'<-e any 

application for a permit which v . -ould: 

■H-i interfere — w+th — tfee — artainmca t — ef 

maintenance of any ambient air quality' 

standard, or 
+2-1 result in violation of applicable portions 

of the — implementation — ptee — control 

strategy. 



Statutory .Authority G. S. 143-213: 143-215. 3(a)(1); 
143-215.109. 

.0803 fflGH\V.\Y PROJECTS 

j\55e5sments Environmental assessments 
regarding highway projects will be r£\ie%yed in 
accordance with the National Environmental Policy 
Act and the North Carolina Environmental Policy 
Act. If there is no assessment, or if an assessment 
fails to complement the purpose of this Regulation 
Rule due to negative declaration, improper address 
to the air problem, insufficient information, or 
failure in abatement proceedings, or if the 
environmental impact assessment fails to show- 
that the highway project will not result in 
violations of applicable portions of the control 
strategy', and will not interfere with attainment or 
maintenance of a national standard, then the 
following regulatory' provisions shall apply: 



:li 



ij) 



A person shall not construct or modif\' 
any highway if that highw ay will result in 
a contravention of ambient air qualin.- 
standards; 

Before construction or modification of 
modifying any highway with an expected 
ma.'sdmum traffic volume of 2. GOO 
vehicles per hour or more within 10 
years, a person shall apply for and have 
received a permit as described in 15A 
NC-AC 2Q .0600 Paragraphs ib i . i d. and 
(d) of Regulation .0802 of this Section . 



8:11 



NORTH CAROLINA REGISTER 



September 1. 1993 



914 



PROPOSED RULES 



and shall comply with any terms and 
conditions therein. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 109. 

.0804 AIRPORT FACILITIES 

Before constructing or modifying any airport 
facility e xp e ct e d designed to have at least 100,000 
or mor e annual aircraft operations, or at least 45 
or mor e peak-hour aircraft operations (one opera- 
tion equals one takeoff, or one landing) within 10 
years , a person the owner or developer of the 
airport facility shall apply for and have received a 
permit as described in ParagraphD (b), (c). and (d) 
of R e gulation .0802 of this S e ction 15A NCAC 2Q 
.0600 . and shall comply with any and all terms 
and conditions therein. 

Statutory Authority- G.S. 143-215. 3(a)(1); 143- 
215. 109. 



(b) Parking lots, decks, or garages that are 
connected such that a person may drive from one 
to another without having to travel on a public 
street or road shall be considered one lot or deck. 
Parking lots, decks, or garages of common owner- 
ship separated by a public street or road but within 
150 feet of one another and with no existing 
physical barrier (e.g. buildings, terrain, etc.) will 
be considered one facilits' for permit and modeling 
purposes. 

(c) Temporary barriers shall not be used to 
reduce the capacity of an otherwise affected trans- 
portation facility to less than the amount which 
requires permitting. The design and plan shall 
clearly shov.' the total parking capacity'. 

(d) Phased construction shall be evaluated and 
permitted for a period not to exceed five years 
from the date of application. 

Statutory Authority- G.S. 143-215. 3(a)(1); 143- 
215.109. 



.0805 PARKING FACILITIES 

(a) The ovv'ner or developer of a transportation 
facilits' shall not construct or modify' a parking 
area until he has applied for and received a permit 
under 15A NCAC 2Q_ .0600 where the parking 
area is: 

(1) a parking lot or combination of parking 
lots v.'ith a parking capacity of at least 
15(X) spaces or a potential open parking 
area of at least 450.CKX) square feet; 
(T\ an existing parking lot or combination 
of parking lots with a parking capacity 
of at least 1500 spaces that will be 
expanded by at least 500 spaces beyond 
the last permitted number of spaces; 

(3) a parking deck or garage with a parking 
capacit^' of 750 spaces or more; 

(4) an existing parking deck or garage with 
a parking capacity' of at least 750 spac- 
es that will be expanded by at least 250 
spaces beyond the last permitted num- 
ber of spaces; 

(5) a combination of parking lots, decks, 
and garages v.'ith a parking capacity of 
at least 1(X)0 spaces or a potential park- 
ing area of at least 3(X),0(X) square feet; 
or 

(6) an existing combination of parking lots, 
decks, and garages with a parking 
capacity of at least 1000 spaces that 
v."ill be expanded by at least 5(X) spaces 
beyond the last permitted number of 
spaces. 



.0806 AMBIENT MONITORING AND 
MODELEVG ANALYSIS 

(ai The Director may require the owner or 
developer of a transportation facility subject to the 
requirements of this Section to conduct ambient air 
quality monitoring. 

(b) The Director may require the owner or 
developer of a transportation facility subject to the 
requirements of this Section to perform dispersion 
modeling analyses to predict the impact of pro- 
posed construction or modification of a transporta- 
tion facilitN' on ambient air qualit\'. 

Statuton,' Authority G.S. 143-215. 3(a)(1); 143- 
215.66; 143-215.109. 

SECTION .1100 - CONTROL OF 
TOXIC AIR POLLLTANTS 

.1109 CASE-BY-CASE ^LVXIMUM 
ACfflEVABLE CONTROL 
TECHNOLOGY 

(a) This Rule applies only to sources of hazard- 
ous air pollutants required to have a permit under 
15A NCAC 20 .0500. 

(b) This Rule shall apply only after it and 15A 
NCAC 20 .0500 have been approved by the EPA. 
except that the requirements of Paragraph (d) of 
this Rule shall not apply before .May 15. 1994. 

(c) For the purposes of this Rule the following 
definitions apply: 

( 1 ) "EPA" means the United States 

Environmental Protection Agency or 



915 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



the Administrator of U. S. 
Environmental Protection Agency. 

(2) "Hazardous air pollutant" means any 
pollutant listed under Section 1 12(b) of 
the federal Clean Air Act. 

(3) "MACT" means maximum achievable 
control technology. 

(4) "Maximum achievable control 
technology" means: 

(A) for existing sources. 



m 



im 



im 



15} 



a MACT standard that EPA has 
proposed or promulgated for a 
particular category of facility or 
source, 

the average emission limitation 

achieved by the best performing 

12 percent of the existing facilities 

or sources for which EPA has 

emissions information if the 

particular category of source 

contains 30 or more sources, or 

(iii) the average emission limitation 

achieved by the best performing 

five facilities or sources for which 

EPA has emissions information if 

the particular category of source 

contains fewer than 30 sources, or 

for new sources, the maximum degree 

of reduction in emissions that is 

deemed achievable but not less 

stringent than the emission control 

that is achieved in practice by the best 

controlled similar source. 

"Modification" means any physical 



change in, or change in the method of 
operation of, a facility which increases 
the actual emissions of any hazardous 
air pollutant emitted by that facility or 
which results in the emissions of any 
hazardous air pollutant not previously 
emitted by that facility. 

(d) If EPA fails to promulgate a standard for a 
category of source under Section 1 12 of the federal 
Clean Air Act by the date established pursuant to 
Sections 112(e)(1) and £3} of the federal Clean Air 
Act, the owner or operator of any source in such 
category shall submit, within 18 months after such 
date, a permit application to the Director to apply 
MACT to such sources. Sources subject to this 
Paragraph shall be in compliance with this Rule 
within three years from the date that the permit is 
issued. 

(e) The owner or operator of an existing facility 
shall apply MACT to all sources in that facility 
that are modified or involved in a modification. 



MACT for new sources shall be applied to sources 
at an existing facility that is constructed or 
reconstructed. 

(f) The owner or operator of any new facility 
shall apply MACT to the new facility before 
beginning operation. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5), (10). 

SUBCHAPTER 2H - PROCEDURES 
FOR PERMITS: APPROVALS 

SECTION .0600 - AIR QUALITY 
PERMITS 

.0601 PURPOSE AND SCOPE 

fa) — The following source s or activities arc not 
likely to contravene any applicable ambient air 
quality or emission control standard, and therefore, 
arc not required to obtain a permit: 

^4-) air conditioning or comfort ventilation 

systems — which — de — net — transport, 
remove, — er — exhaust — product — er 
byproduct to the atmosphere; 

f3) combustion — sources — s erving — heating 

systems which provide comfort heat for 
residences; 

0) laboratory equipment used for chemical 

or physical analysis; 

(4) nonstationary internal combu s tion 

engine s and vehicles; 

f§) equipment which emits only nitrogen, 

oxygen, carbon dioxide, and/or water 
vapor; 

(6) maintenance — er — repair — ©f — existing 

equipment that docs not result in an 
increase — te — the — emission — ©f — aif 
pollutants; 

fT) replacement of existing equipment with 

like equipment of s ame size, type, and 
function that docs — not result in an 
increase — te — the — emission — ef — aif 
pollutants and that is described by th e 

current permit, including the 

application, except for characteristics 
that could not affect pollution control, 
for example, serial numbers: 

i;%j smudge — pets — fef — orchards — er — s mall 

outdoor — heating — devices — ie — prevent 
freezing of plants; 

f^) fttel burning equipment firing 

exclusively gaseous fuel with th e total 
heat input rating of 250 million BTU 
per hour or less; 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



916 



PROPOSED RULES 



f40) ftte^ burning equipment firing 

exclu s ively No. 1 or No. 2 fuel oil with 
the total heat input rating of 100 million 
BTU p>cr hour or less; 

f44^ fuel burning equipment firing a mixture 

of gaseous fuel. No. 1 fuel oil or No. 2 
fuel oil. in any proportion, with the 
total heat input rating of 100 million 
BTU pcT hour or lc33. 

(h) Tfe« — owner or operator of any source 

required to have a permit may request the director 
to exempt the source from having to have a 
permit. The request shall be in v>'riting. — Along 
with the request, the owner or operator shall 
submit supporting documentation to show that air 
quality and emission control standards will not be. 

ftof — afe — likely — te — be-. — contravened. If the 

documentation shows to the satisfaction of the 
director that — air quality — and — emission — control 
standards — vt4W — net — be^ — nor are — likely to — be^ 
contravened, a permit shall not b e required. 

fe) — The owner or operator of all source s for 
which there is an ambient air quality or emission 
control standard that is not exempted by Paragraph 

(a) or (b) of thi s Rule shall apply for a permit. 
The owner or operator of a source required to 
have a pxirmit shall — not begin constructing or 
operating the source if it is a new source or 
modify' the — source — if it — is — an — existing — source 
without first obtaining a permit. 

i4) — Any person who constructs or modifies a 
complex source subject to Section 15 NCAC 2D 
.0800 s hall obtain a permit in accordance with 
Rules .0602 through .0609 of this Section. If the 
source is excepted in Section 15 NCAC 2D .0800. 
a permit shall not be required. 

fe^ — Any exemption allowed by Paragraph (a) or 

(b) of this Rule does not apply to sources subject 
to Rule 15A NCAC 2D .052 4 . .0525. or .0530. 
This — owner or o[x:rator of these sources shall 
obtain a permit before beginning construction or 
operation. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108: 143-215.109. 

.0602 DEFINITIONS 

Unless the context otherwise requires, the terms 
used in this Section shall be used as defined in 
G.S. 1 4 3 213 and as follows: 

H") "Director" — means the — Director of the 

Division of Environmental Management. 
"Plans — afid — Specifications" — means — the 
completed application (AQ 22 or AQ 81) 
and any other documents required to 



f^ 



(4)- 



^^ 



define the operating conditions of the air 

pollution source. 

"To Alter or Change" means to modify' 

equipment or processes of existing facili 

tie*^ — This includes equipment additions, 

deletions, adjustments, and/or operational 

practices — which — increase — emissions — ef 

affect the compliance status of the equip 

ment or process. 

"Source" means the origin of emission of 

an air pollutant. 

"Staff" — means the air quality section, 

division of environmental management, 

or its successor. 

"Maximum feasible control" means the 

maximum degree of reduction for each 

pollutant — subject to regulation — m — this 

Section using the best technology that i s 

available taking into account, on a case 

by ease basis, energy, environmental, and 

economic impacts and other costs. 



Statutory Authority 
215.3(a)(1). 



143-213; 143- 



t^ 



.0603 APPLICATIONS 

(a) P e rmit application s hall b e mad e in duplicat e 
on official form s of th e Dir e ctor and shall include 
plans and sp e cification s giving all necessary data 
and information as requir e d by th e application 
form. Th e s e application forms shall b e used: — aif 
contaminant sources — Form AQ 22. and complex 

sources — Form AQ 8 1 . Th e s e — forms may be 

obtain e d by writing to th e addr e ss in Paragraph (b) 
of this Rul e . — Whenever th e information provided 
on these forms do e s not ad e quately describ e the 
sourc e and its air pollution abat e m e nt e quipm e nt, 
th e Dir e ctor may r e qu e st that th e applicant provide 
any oth e r information that th e Dir e ctor consid e rs 
n e cessary — te — e valuat e — the — sourc e — afid — its — aif 
pollution abat e m e nt e quipm e nt. 

(h) A p e rmit or p e rmit r e n e wal application shall 
b e fil e d in writing with th e Dir e ctor. Division of 
Environm e ntal Manag e m e nt. — P. O. Box 29535, 
Ral e igh. North Carolina 27626 0535. Application 
for p e rmit r e n e wal or own e rship transf e r may be 
by l e tt e r to th e Director, if no alteration or modifi 
cation has been mad e to th e originally p e rmitt e d 

sourc e . A — non r e fundabl e — p e rmit — application 

proc e ssing fee shall accompany each application. 
The permit application processing fees are in Rule 
.0609 of thi s S e ction. — Euioh p>ermit or r e n e wal 
application is incomplet e until th e permit npplica 
tion processing fe e is rec e iv e d. 

fe-) — B e fore acting on any p e rmit application, th e 



917 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



Director may rcqucat any information from an 
applicant and conduct any inquiry or investigation 
that lie considers necessary and require the submi s 
sion of plans and specifications, 
(d) Before ioouing any permit for: 

{4j a source to which 15A NCAC 2D 

.0530 or .0531 applies. 

•(3) a source whose emission limitation is 

based on a good engineering practice 
stack height that exceeds the height 

defined n l^A NCAC 3© 

■0533(a)( 4 )(A), (B), or (C). 

0^ a — requirement — fef — controls — more 

stringent than the applicable emission 
standards in Section — 15A NCAC 2D 
.0500 in accordance with 15A NCAC 
2D .0501, or 

^4) any other source that may be designated 

by the Director ba s ed on significant 

public interest, the information 

s ubmitted by the owner or op>crator, as 
well as the agency' s analysis of the 
effect on ambient air quality, shall be 
made available for public inspection in 
at — least — ©ae — location — m — the — region 
affected. This shall be accomplished by 
publishing — ifl — the — region — affected — a 
notice — by — prominent — advertisement 
which shall provide a 30 day period for 
submittal of public comment and an 
opportunity — fef — a — public — hearing 
request. — Confidential material will be 
handled in accordance with G.S. 1 4 3 
215.3(a) (2). 
fe) — A public hearing shall be held before the 
i ss uance of any permit containing any one of the s e 
condition s : 

f+^ any physical or operational limitation 

on the capacity of the source to emit a 
pollutant, including air pollution control 
equipment and re s triction s on hours of 
operation or on the type or amount of 

material combusted, stored, ©f 

processed, when such limitations are 
necessary to assure that rules in Section 
15A NCAC 2D .0900 do not apply in 
accordance with 15A NCAC 2D .0901 
and .0902; 

iOr) an allowance of controls different than 

the applicable — emission standards — m 
Section 15A NCAC 2D .0900 in 
accordance with 15A NCAC 2D .0905; 

0) an — alternate — compliance schedule 

promulgated in accordance with — 1-5A 
NCAC 2D .0910; 



f4) the quantity of solvent borne inlc that 

H»ay — be used by a printing unit or 
printing sy s tem s — in — accordance — with- 
15A NCAC 2D .0936; or 

{Sj an allowance of a particulate emission 

rate of 0.08 grains per dry standard 
cubic foot for incinerators constructed 
before July 1, 19 8 7, in accordance with 
15A NCAC 2D .1205(b)(2). 
The public hearing shall be preceded by a 30 day 
period of public notice during which the agency's 
analysis and draft permit shall be available — f&r 
public insf)cction in the appropriate regional office. 
If and when a permit containing the s e conditions 
is issued, it will become a part of the North 
Carolina State Implementation Plan for Air Quality 
(SIP) as — an appendix available for inspection at 
Department of Environment, Health, and Natural 
Re s ources regional office s . — The permit will be 
submitted to the U.S. Environmental Protection 
Agency for inclu s ion as part of the federally 
approved s tate implementation plan. 

(f) In a permit application for an alternative mix 
of controls under 15A NCAC 2D .0501 (f), the 
owner or operator of the facility shall demon s trate 
to the satisfaction of the Director that the propo s al 
is equivalent to the existing requirements of the 
SIP in total allowed emissions, enforceability, 
reliability, and environmental impact. 

^4-) With the exception stated m 

Subparagraph (2) of this Paragraph, a 
public hearing shall be held before any 
permit containing alternative emission 

limitations — ts — issued. The — public 

hearing shall be preceded by a 30 day 
period of public notice during which the 
agency's analysis and draft permit shall 
be available for public inspection and 
comment in the appropriate regional 
office. If and when a permit containing 
these — conditions — is — is s ued, — it — wttt 
become — a — part — of th e — SIP — as — aft 
appendix available for inspection at the 
department' s regional offices. Until the 
U.S. Environmental Protection Agency 
(EPA) — approves — the — StP — revision 
embodying the p>crmit containing an 
alternative mix of controls, the facility 
shall continue to meet the otherwi se 
applicable existing SIP requirements. 
The revi s ion will be approved by EPA 
eft — the — basis — ©f — the — revi s ion' s 
con s i s tency with — EPA's — "Policy — fef 
Alternative Emi ss ion Reduction Option s 
Within State Implementation Plan s " as 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



918 



PROPOSED RULES 



promulgatcid in the Federal Register of 
Deeembcr 1 1 , — 1989. pages 71780 
71788. and i subsequcnt rulings. 

^ The permit applicant(9) may choose to 

provide a written acknowledgment that 
the emission rate limitations or control 



techr 



iniques allowed under an alternative 
mix of controls involving only volatile 



organic compou 



nds 



arc 



-faUy 



operator — of a — source — located 



enforceable by EPA as a part of the SIP 
and — may — be — enforced — pursuant — te 
Section 30 4 (a) of the federal Clean i\ir 
Aefc — The acknowledgment shall also 
bind the source owner's successors. If 
the acknowledgment is provided to the 
Director, the Director will promptly 
transmit to EPA a copy of the permit 
application. — Before the Director issues 
the permit, there shall be a 30 day 
period of public notice during which the 
agency's analysis and draft permit shall 
be available for public inspection and 
comment in the appropriate regional 
office. — If and when such permit ^s 
issued, — the — Director — wiH — promptly 
transmit a copy to EPA. The owner or 

4fl — a 

nonattoinment — area — fer — ozone — as 
designated — by — the — Environmental 
Protection Agency may not initiate the 
use of this option after November 30, 
1989; he shall follow the procedures set 
©trt — ifi — Subparagraph — (-H — e4 — ttek 
Paragraph. 



Statutory' Authority G.S. 143-215. 3(a)(1): 143- 
215.108; 143-215.109. 



.0604 FINAL ACTION ON PERMIT 
APPLICATIONS 

(a) The dir e ctor may: 

^4^ issu e a p e rmit or a r e n e wal containing 

the conditions n e cessary to carry out 
the purposes — of G.S. — Chapter — \A^ 
Articl e 2 IB; 

{33 modify or r e vok e any — p e rmit u pes 

giving 60 day s notice to th e person 
aff e ct e d ; 

i^ d e ny a permit application wh e n nec e s 

sary to carry out th e purpos e s of G.S. 

Chapt e r 1 4 3, Articl e 21 B. 

■(b) — Any person whos e application for a permi t 

or r e newal is d e ni e d or is grant e d subj e ct to 

conditions which are unacceptable to him or whos e 



permit is modified or revoked shall have the right 
to a hearing. — The person will have 30 days fol 
lowing the notice of the director's decision on the 
application in which to request the hearing. 



Statutory Authority G.S. 
215.109; 143-215. 3(a)(1). 



143-215. 108; 143- 



.0605 ISSUANCE: REVOCATION: AND 
ENFORCEMENT OF PERMITS 

fa) — Permits shall be issued or renewed for a 
period — of time — considered — reasonable — by — the 
director, but period shall not exceed five years. 

fb) — Any permit or permit renewal issued under 
this Regulation may be revoked or modified if: 



H^ 



the information contained in the appli 
cation or presented in support thereof is 
determined to be incorrect, 

(3) the conditions under which the permit 

or permit renewal was granted have 

changed, 

violations of conditions contained in the 



H3- 



permit have occurred, or 
the p > crmit holder fails to pay the annual 
administering and compliance monitor 
ing fee required under Regulation .0609 
of this Section within 30 days after 
being billed. 



Statutory Authority G.S. 143-215. 3(a)(1), 
(la), (lb); 143-215.108; 143-215.109; 143- 
215.114. 

.0606 DELEGATION OF AUTHORITY 

The director may delegate the processing of 
f>crmit applications and the issuance of permits to 
the Chief of the Air Quality Section, the regional 
offic e supervisor, or the Assistant Chief for Per 
mitting as he considers appropriate. — TTiis dclega 
tion shall not include the authority to deny a 
permit application or to revoke, modify, or s u s 
pend a permit. 



Statutory Authority G.S. 143-215. 3(a)(1), (4). 

.0607 COPIES OF REFERENCED 
DOCUMENTS 

fa) — Copies of applicable Code of Federal Regu 
lations sections referred to in this Section and the 
North Carolina State Implementation Plan for Air 
Quality — appendix — ef — conditioned — permits — are 
available for public inspection at Department of 
Environment. — Health. — and — Natural — Resources 
regional offices. — They are: 

<43 Asheville Regional Office. Interchange 



919 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



Building, 59 Woodfin Place. Ashcvillo, 

North Carolina 28801; 
^3) Winston Salem Regional Office, Suite 

100, 8025 North Point Boulevard, 

Winston Salem, North Carolina 27106; 
^ Moorcsville Regional Office, 919 North 

Main — Street, Moorcsville, North 

Carolina 28115; 
{4) Raleigh Regional Office, 3 8 00 Barrett 

Drive, Post Office Box 27687, Raleigh. 

North Carolina 27611; 
^§) Faycttcvillc Regional Offiice, Wachovia 

Building, Suite 71 4 , Fayetteville, North 

Carolina 28301; 
f6) Washington — Regional — Offiicc. — W34 

Carolina — Avenue. — Parish — Building, 

Washington. North Carolina 27 88 9; 
f7) Wilmington — Regional — Office. 15? 

Cardinal Drive Exten s ion, Wilmington, 

North Carolina 2 84 05. 
fb) — Copies of such regulations can be made at 
these regional offiicc s for ten cent s ($0.10) per 
pager 

Statutory Authority G.S. 150B-21.6. 

.0609 PERMIT FEES 

(a) For the purposes of thi s Rule, the following definitions apply: 

f4^ "Allowable emi s sions" means the actual emissions that arc permitted to occur if the source were 

to op>eratc constantly under maximum permitted condition s . Sources may request permit 

conditions that limit emissions to le ss than regulation allowable or that restrict operations. — M 
neither a rule nor a permit limiting emissions from a particular source specifies an emis s ion rate, 
then the allowable emissions shall be the actual emissions that are expKicted to occur if the source 
were to operate con s tantly under maximum conditions allowed by the permit. — When a new 
source is added to an existing facility, the allowable emissions for the facility shall be the sum 
of the new and existing sources. 

(3) "Complex source" means a source requiring a permit under Section 15A NCAC 2D .0800. 

^ "Major facility" means any plant site where the allowable emissions of any one regulated 

pollutant under Subchapter 2D of this Title are 100 ton s per year or more, except a site that is 
only a complex source. 

f4) "Minor facility" means any plant site where the allowable emission s of each regulated pollutant 

under Subchapter 2D of this Title arc each less than 100 tons per year, except a site that is only 
a complex source. 

{§) "NESHAP s ource" means a s ource s ubject to a national emission standard for hazardous air 

pollutants in 15A NCAC 2D .0525. 

(6) "NSPS source" mean s a s ource subject to a new source performance standard in 15A NCAC 2D 

T©5347 

f?) "PSD facility" means a plant site having one or more sources subject to the prevention of 

significant deterioration requirements of 15A NCAC 2D .0530 or a plant site applying for a 
permit for a major s tationary source or a major modification subject to 15A NCAC 2D .0530. 
(b) — The following fees shall be charged for processing an application for an air permit and for 
administering and monitoring compliance with the terms of an air permit: 

Permit Application Annual Administering and 

Proces s ing Fee Compliance Monitoring Fee 



8:11 NORTH CAROLINA REGISTER September 1, 1993 920 



PROPOSED RULES 



Catcgon ^ - 



Standar d- 



Simple — 
Rcnewat - 



Standor d- 



-4fl 
Complig gee 



Minor facility — 

Minor facility — 

with an NSPS 



-^§0- 



-$35- 



$250 



-$W0 



s ource 

Major facility 



-60- 



-45- 



-^00- 



-4«0 



-we- 



-=f&- 



-Ȥ0- 



-640 



PSD facility 

Facility with a 
NESHAP sourc e 



-400- 



4m- 



4475- 



4050 



WO- 



-^=fS- 



-85^ 



-640 



-0- 



-850- 



-640 



Complex source tOO 

If a facility or source belong s to more than one category', the fees shall be those of the applicable category 
with the highest fees. — No fees arc required to be paid under this Rule by a farmer who submits an 
application or receives a permit that pertain s to hi s farming operations. — If the total payment for fees 
required for all permits und e r G. S. 1 4 3 215.3(a)(lb) for any single facility will exceed seven thousand five 
hundred dollars ($7,500) p e r year, then the total for all these fees will be reduced for this facility so that 
the total payment is seven thousand five hundred dollars ($7,500) per year. 

fe) — The standard permit application processing fee listed in Paragraph (b) of this Rule is required for 
technical changes such as changing the location of a source; adding additional emi ss ion sources, pollutants, 
or control equipment; or changing a permit condition such that a change in air pollutant emissions could 
re s ult. A s imple renewal permit application processing fee is required for p>crmit renewals without technical 
changes. A twenty' five dollar ($25) permit application processing fee i s required for administrative changes 
such as owner s hip transfers, construction date changes, test date changes, or reporting procedure changes. 
No permit application processing fee is required for changes to an unexpired p>crmit initiated by the Director 
to correct processing errors, to change permit conditions, or to implement new standards. 

•(d) — If a facility has been in full compliance with all applicable administrative, regulatory, and s elf - 
monitoring reporting requirements and p>crmit conditions during the previous calendar year, the annual 
administering and compliance monitoring fee shall be that which is in the " Annual Administering and 
Compliance Monitoring Fee In Compliance" column. — A facility shall be considered to have been in 
compliance during the previous calendar year if it has not been sent any Notic e s of Non compliance or 
Notices of Violation during that calendar year. — If a Notice of Non compliance or a Notice of Violation was 
based on erroneou s information, the Director may send a letter of correction to the permittee clearing the 
record for compliance purposes . If a Notice of Non compliance or Notice of Violation is still in the process 
of being contested or appealed, the permit holder shall pay the in compliance fee. — At the conclusion of the 
contest or appeal process the permit holder shall pay the difference between th e s tandard fee and in 
compliance fee unless the notice is found to be erroneous. 

(e) If the actual emissions of each pollutant from a minor facility are no more than three tons during the 
previous calendar year, the permit holder need not pay the annual admini s tering and compliance monitoring 
fee provided that actual emissions continue to be no more than three ton s during the annual period for which 
the fee i s b e ing billed. 

^ — Payment of permit application proces s ing fees and annual administering and compliance monitoring 
fees shall be by check or money order made payable to the N.C. Department of Environment, Health, and 
Natural Resources. — The payment should refer to the air permit application or permit number. 

(g) — The payment of the permit application processing fee required by Paragraph (b) or (c) of thi s Rule 
shall accompany the permit, permit renewal, or permit modification application and i s non refundable. — If 
the permit application processing fee is not paid when the application is filed, the application shall be 
considered incomplete until the fee is paid. 

{b> — The initial annual administering and compliance monitoring fee shall be paid in accordance with 
Paragraph (m) of this Rule when a permit, modified p e rmit, or renewed permit is issued for which a permit 
application processing fee s [>ecified in Paragraph (b) or (c) of thi s Rule has been paid. For complex sources 
only an initial annual administering and compliance monitoring fee — shall be paid; no subsequent annual 
administering and compliance monitoring fee is necessary for complex sources unle ss technical change s ar e 
made in the permit. 



921 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



(i) If a permit or permit modification results in changing the category in which a facility belongs, the next 
annual administering and compliance monitoring fee shall be paid for category in which the facility belongs 
after the permit or permit modification is issued. 

(j) Any permit holder claiming exemption under Paragraph (c) of this Rule shall certify to the Director 
within 30 days after being billed that the actual emis s ion s of each pollutant from the facility are no more 
than three tons during the previous calendar year. 

{le) — A facility which has not begun operations or which has ceased all operations at a site shall not be 
required to pay the next annual administering and compliance monitoring fee provided operations are not 
begun or resumed during that annual period. Any resumed operations shall necessitate the payment of the 
entire annual fee. — A facility that is moved to a new site may reeeive credit for any unused portion of an 
annual administering and compliance monitoring fee if the permit for the old site is relinquished. Only one 
annual administrative and compliance monitoring fee needs to be paid annually for each permit. 

(1^ — A fee payer with multiple permits may arrange to consolidate the payment of annual administrative 
and compliance monitoring fees into one annual payment. 

im) — If, within 30 days after being billed, the permit holder fails to pay an annual administering and 
compliance monitoring fee or fails to certify an exemption under Paragraphs (e) and (j) or (k) of this Rule, 
the Direetor may initiate action to revoke the permit. - 

(n) In order to avoid violation of the statutory limit that total permit fees collected in any year not exceed 
30 percent of the total budget from all sources of environmental p>crmitting and compliance programs, the 
Division shall in the first half of each state fiscal year project revenues from all sources including fee s for 
the next fiscal year. — If this projection shows that the statutory limit will be exceeded, rulemaking shall be 
commenced in order to have an appropriately adjusted fee schedule which will avoid excessive revenue 
collection from permit fco sr 



Statutory Authority G.S. 143. 215. 3(a)(1), (la), (lb). 

SUBCHAPTER 2Q - AIR QUALITY 
PERMIT PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

,0101 REQUIRED AIR QUALITY PERMITS 

(a) No owner or operator shall do any of the 
following activities, that is not otherwise exempt- 
ed, without first applying for and obtaining an air 
quality permit: 

£1} construct, operate, or modify a source 
subject to an applicable standard, re- 
quirement, or rule that may emit any 



lA} 
IB} 

IQ 

im 

IS 
IGl 

im 

m 

m 

IKl 
lU 
(M) 

IN} 



regulated pollutant or one or more of 
the following: 

sulfur dioxide, 

total suspended particulates, 

particulate matter (PMIO), 

carbon monoxide, 

nitrogen oxides, 

volatile organic compounds, 

lead and lead compounds, 

fluorides. 



total reduced sulfur, 

reduced sulfur compounds, 

hydrogen sulfide, 

sulfuric acid mist, 

asbestos. 

arsenic and arsenic compounds. 



(O) beryllium and beryllium compounds, 

(P) cadmium and cadmium compounds, 

(Q) chromium(VI) and chromium(VI) 
compounds, 

(R) mercury and mercury compounds, 

(S) hydrogen chloride, 

(T) vinyl chloride, 

(U) benzene, 

(V) ethylene oxide, 

fW) dioxins and furans, 

(X) odor, 

(Y) ozone, or 

(Z) any toxic air pollutant listed jn 15A 
NCAC 2D .1104: 
(2) construct, operate, or modify a facility 
that has the potential to emit at least 10 
tons per year of any hazardous air 
pollutant or 25 tons per year of all 
hazardous air pollutants combined or 
that are subject to requirements estab- 
lished under the following sections of 
the federal Clean Air Act: 

(A) Section 1 12(d), emissions standards: 

(B) Section 1 12(g), modifications (but 
only for the facility subject to Section 
112(g)(2)): 

(C) Section 112(j), federal failure to 
promulgate standards: 

(D) Section 112(r), accidental releases; or 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



922 



PROPOSED RULES 



m 



enter into an irrevocable contract or 



allow or cause the construction, opera- 
tion, or modification of an air-cleaning 
device. 

(b) There are two types of air quality permits: 
(1) Stationary Source Construction and 

Operation Permit: The owner or opera- 
tor of a new, modified, or existing 
facility or source shall not begin con- 
struction or operation without first 
obtaining a construction and operation 
permit in accordance with the standard 
procedures under Section .0300 of this 
Subchapter. Title V facilities are sub- 
ject to the Title V procedures under 
Section .0500 of this Subchapter includ- 
ing the acid rain procedures under 
Section .0400 of this Subchapter. A 
facility may also be subject to the air 
toxic procedures under 15A NCAC 2H 
■0610. 
£2} Transportation Facility Construction 
Permit. The owner or operator of a 
transportation facility subject to the 
requirements of 15A NCAC 2D .0800 
shall obtain a construction only permit 
following the procedures under Section 
■0600. 

(c) Fees shall be paid in accordance with the 
requirements of Section .0200 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108; 143-215.109. 

.0102 ACTIVITIES EXEMPTED FROM 
PERMIT REQUIREMENTS 

(a) If a source is subject to any of the following 
rules, then the source is not exempted from permit 
requirements, and the exemptions in Paragraph (b) 
of this Rule do not apply: 

(1) new source performance standards 
under 15A NCAC 2D .0524. except 
new residential wood heaters; 

(2) national emission standards for hazard- 
ous air pollutants under 15A NCAC 2D 
■0525. except asbestos demolition and 
renovation activities; 

{3} prevention of significant deterioration 
under 15A NCAC 2D ^0530; 

(4") new source review under 15A NCAC 
2D .0531 and .0532: 

£5} sources of volatile organic compounds 
subject to the requirements of 15A 
NCAC 2D .0900 that are located in 
Mecklenburg and Gaston Counties; 



(6) sources required to a pply maximum 
achievable control technology for haz- 
ardous air pollutants under 15 A NCAC 
2D . 1 109 or 40 CFR Part 63; or 

(7) sources at facilities subject to 15A 
NCAC 2D .1100. 

(b) The following activities do not need a permit 
or permit modification under this Subchapter; 
however, the Director may require the owner or 
operator of these activities to register them under 
15A NCAC 2D .0200: 

(1) activities exempted because of category: 
(A) maintenance, upkeep, and replace- 
ment: 



(i) maintenance, structural changes. 
or repairs which do not change 
the capacity of such process, fuel- 
burning, refuse-burning, or con- 
trol equipment, and do not in- 
volve any change in quality, 
nature, or quantity of emission of 
regulated air pollutants; 
(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing 
floors, roof repair, washing, 
portable vacuum cleaners, sweep- 
ing, or insulation removal; or 
(iii) replacement of existing equipment 
with equipment of the same size, 
type, and function that does not 
result in an increase to the emis- 
sion of regulated air pollutants, 
that does not affect the compli- 
ance status, and that is described 
in the current permit, including 
the application, except for charac- 
teristics that could not affect air 
pollution control (for example, 
serial numbers); 
(B) air conditioning or ventilation: com- 
fort air conditioning or comfort venti- 
lating systems which do not transport, 
remove, or exhaust regulated air 
pollutants to the atmosphere; 
(O laboratory equipment: 

(i) laboratory equipment used exclu- 
sively for chemical or physical 
analysis for quality control pur- 
poses; or 
(ii) non-production laboratory equip- 
ment used at non-profit health or 
non-profit educational institutions 
for chemical or physical analyses, 
bench scale experimentation or 



923 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



I 



> 



I 



training, or instruction; 


throughput of no more than 


fD) storage tanks: storage tanks used 


50,000 gallons per year; 


solelv to store fuel oils, kerosene. 


(B) combustion and heat transfer 


diesel, jet fiiel, crude oil, used motor 


equipment: 


oil, natural gas, or liquified petroleum 


(i) combustion sources with a heat 


gas; 


input of no more than 10,000,000 


(E) combustion and heat transfer equip- 


BTU per hour if the emissions 


ment: 


from the combustion source is 


(i) space heaters operating bv direct 


solelv from kerosene. No. 1 fuel 


heat transfer and used solelv for 


oil. No. 2 fuel oil, equivalent 


comfort heat; 


unadulterated fuels, natural gas. 


(ii) residential wood stoves, heaters. 


or liquified petroleum gas; or 


or fireplaces; 


(ii) space heaters burning waste oil if: 


(iii) hot water heaters which are used 


(I) The heater bums onlv oil that 


for domestic purposes onlv and 


the owner or operator 


are not used to heat process wa- 


generates or used oil from do- 


ter; 


it-vourself oil changers who 


(F) wastewater treatment processes: 


generate used oil as household 


industrial wastewater treatment pro- 


wastes; 


cesses in which the wastewater or 


(II) The heater is designed to have 


wastewater treatment process does not 


a maximum capacity of not 


contain volatile organic compounds or 


more than 500,000 Btu per 


hazardous air pollutants; or 


hour; and 


(G) miscellaneous: 


(III) The combustion gases from the 


(i) motor vehicles; 


heater are vented to the 


Hi) refrigeration equipment that is 


ambient air. 


consistent with Section 601 


(iii) emergency use generators and 


through 618 of Title VI (Strato- 


other internal combustion engines. 


spheric Ozone Protection) of the 


except motor vehicles, that 


federal Clean Air Act, 40 CFR 


produce no more than: 


Part 82, and anv other regulations 


(I) 40 kilowatts or 60 horsepower 


promulgated bv EPA under Title 


for natural gas-fired engines. 


VI for stratospheric ozone protec- 


an 110 kilowatts or 150 


tion, except those units used as or 


horsepower for liquified 


in conjunction with air pollution 


petroleum gas-fired engines, or 


control equipment; or 


(III) 35 kilowatts or 50 horsepower 


(iii) equipment that does not emit anv 


for diesel-fired engines; or 


regulated air pollutants. 


(C) miscellaneous: 


(2) activities exempted because of size or 


(i) anv emissions unit or source with 


production: 


a potential to emit no more than 


(A) storage tanks: 


1.0 pound in anv hour and 4.38 


(i) storage tanks with a storage ca- 


tons per year (8760 hours) before 


pacity of no more than 1100 


control of each regulated pollutant 


gallons storing organic liquids. 


that is not a hazardous air 


excluding hazardous air pollut- 


pollutant; 


ants, with a true vapor pressure of 


(ii) emissions of hazardous air 


no more than 10.8 pounds per 


pollutants below the de minimis 


square inch absolute at 70°F; or 


emissions rates in 40 CFR Part 


(ii) underground storage tanks with a 


63i 


storage capacity of no more than 


(iii) electrostatic dry powder coating 


2500 gallons storing organic 


operations equipped with powder 


liquids, excluding hazardous air 


recovery including curing ovens 


pollutants, with a true vapor 


with a heat input of no more than 


pressure of no more than 10.8 psi 


10,000,000 BTU per hour; or 


absolute at 70°F and an annual 


(iv) anv incinerator owned and 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



924 



PROPOSED RULES 



operated by a farmer covered 

under Paragraph (d) of 15A 

NCAC 2D .1201: 

(c) Emissions from stationary source activities 

identified in Paragraph (b) of this Rule shall be 

included in determining compliance with the toxic 

air pollutant requirements under 15A NCAC 2D 

.1100 or 2H .0610. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(4); 143-215. 108. 

.0103 DEFEsflTIONS 

For the purposes of this Subchapter, the 

definitions in G^ 143-212 and 143-213 and the 

following definitions apply: 

(1) "Air Pollutant" means an air pollution 

agent or combination of such agents. 

including any physical. chemical, 

biological, radiative substance or matter 

which is emitted into or otherwise enters 

the ambient air. 

"Alter or change" means to make a 
modification. 

"Applicant" means the person who is 
applying for an air quality permit from 
the Division. 

"Application package" means all elements 
or documents needed to make an 



ill 
£3} 

14} 

151 
(6) 



ill 
18) 
19} 



(10) 



an 



application complete. 
"CFR" means Code of Federal 
Regulations. 

"Construction" means change in the 
method of operation or any physical 
change (including on-site fabrication, 
erection, installation. replacement, 
demolition, or modification of an 
emissions unit) that would result in a 
change in emissions or affect the 
compliance status. 

"Director" means the Director of the 
Division of Environmental Management. 
"Division" means the Division of 
Environmental Management. 
"Equivalent unadulterated fuels" means 
used oils that have been refined such that 
the content of toxic additives or 
contaminants in the oil are no greater 
than those in unadulterated fossil fuels. 
"EPA" means the United States 
Environmental Protection Agency or the 
Administrator of the Environmental 
Protection Agency. 

"Facility" means all of the pollutant 
emitting activities that are located on one 



or more contiguous or adjacent properties 
under common control. 

(12) "Federally enforceable" or " federal - 
enforceable" means enforceable by EPA. 

(13) "Hazardous air pollutant" means any 
pollutant which has been listed pursuant 
to Section 1 12(b) of the federal Clean Air 
Act. Pollutants which are listed only in 
15A NCAC 2D .1104 (Toxic Air 
Pollutant Guidelines), but not pursuant to 
Section 1 12rb), are not included in this 
definition. 

(14) "Insignificant activities" means any 
activity exempted under Rule .0102 of 
this Section. 

(15) "Irrevocab le contract" means a contract 
that cannot be revoked without substantial 
penalty. 

(16) "Modification" means any physical 
change or change in method of operation 
that results in an increase in emissions or 
affects compliance status of the source or 
facility. 

(17) "Owner or operator" means any person 
who owns, leases, operates, controls, or 
supervises a facility, emissions unit, 
stationary source, or air pollution control 
equipment. 

(18) "Permittee" means the person who has 
received an air quality permit from the 
Division. 

(19) "Potential emissions" means the rate of 
emissions of any air pollutant which 
would occur at tlie facility's maximum 
capacity to emit any air pollutant under 
its physical and operational design. Any 
physical or operational limitation on the 
capacity of a facility to emit an air 
pollutant shall be treated as a part of its 
design if tlie limitation is federally 
enforceable. Such physical or 
operational limitations include air 
pollution control equipment and 
restrictions on hours of operation or on 
the type or amount of material 
combusted. stored. or processed. 
Potential emissions include fugitive 
emissions from as specified in the 
definition of major source in 40 CFR 
70.2. Potential emissions do not include 
a facility's secondary emissions such as 
those from motor vehicles associated with 
the facility and do not include emissions 
from insignificant activities listed in Rule 
■0102(b)(1) of this Section. 



925 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



(20) 
Id} 



le) 

(2n 



122} 



(23) 



(24) 



"Regulated air pollutant" means: 
nitrogen oxides or any volatile organic 
compound; 

any pollutant for which there is an 
ambient air quality standard under 
Section 15A NCAC 2D .0400; 



any pollutant regulated under ISA 
NCAC 2D .0524 or .0525 or 40 CFR 
Part 60, 61. or 63; 

any pollutant subject to a standard 
promulgated under Section 1 12 of the 
federal Clean Air Act or other require- 
ments established under Section 1 12 of 
the federal Clean Air Act, including 
Section 112(g) (but only for the facility 
subject to Section 1 12(g)(2) of the 
federal Clean Air Act), (j). or (r) of the 
federal Clean Air Act; or 
any Class I or II substance listed under 
Section 602 of the federal Clean Air 
Act. 
"Source" means any stationary article, 
machine, process equipment, or other 
contrivance, or combination thereof, 
from which air pollutants emanate or are 
emitted, either directly or indirectly. 
"Toxic air pollutant" means any of the 
carcinogens, chronic toxicants, acute 
systemic toxicants, or acute irritants that 
are listed in 15A NCAC 2D .1104. 
"Transportation facility" means a com- 
plex source as defined at G.S. 143- 
213(22) and is subject to the 
requirements of 15A NCAC 2D .0800. 
"Unadulterated fossil fuel" means fuel 
oils, coal, natural gas, or liquefied 
petroleum gas to which no toxic additives 
have been added that could result in the 
emissions of a toxic air pollutant listed 
under 15A NCAC 2D .1104. 



Statutory Authority G.S. 143-215.3(a)(l); 143-212; 
143-213. 

.0104 WHERE TO OBTAIN AND 

FILE PERMIT APPLICATIONS 

(a) Official a pplication forms for a permit or 
permit modification may be obtained from and 
shall be filed in writing with the Director. Division 
of Environmental Management. P. O. Box 29535. 
Raleigh, North Carolina 27626-0535 or any of the 
regional offices listed under Rule .0105 of this 
Section. 

fb) The number of copies of a pplications to be 
filed are specified in Rules .0304 (construction and 



operation permit procedures), .0405 (acid rain 
permit procedures). .0507 (Title V permit 
procedures), and .0602 (transportation facility 
construction air permit procedures) of this 
Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108; 143-215.109. 

.0105 COPIES OF REFERENCED 
DOCUMENTS 

(a) Copies of applicable Code of Federal 
Regulations (CFR) sections referred to in this 
Section are available for public inspection at 
De partment of Environment, Health, and Natural 
Resources regional offices. The regional offices 



m 



£2} 



£3} 



(4} 



15} 



16} 



Asheville Regional Office, Interchange 
Building, 59 Woodfin Place, Asheville. 
North Carolina 28801; 
Winston-Salem Regional Office. Suite 
100. 8025 North Point Boulevard. 
Winston Salem. North Carolina 27106; 
Mooresville Regional Office. 919 North 
Main Street. Mooresville. North 
Carolina 28115; 



Raleig h Regional Office, 3800 Barrett 

Drive, Post Office Box 27687, Raleigh, 

North Carolina 28115; 

Fayetteville Regional Office. Wachovia 

Building. Suite 714. Fayetteville. North 

Carolina 28301; 

Washington Regional Office. 1424 

Carolina Avenue. Parish Building. 



Washington. North Carolina 27889; 
17} Wilmington Regional Office. 7225 
Wrightsville Avenue. Wilmington. 
North Carolina 28403. 
fb) Permit applications and permits may be 
reviewed at the Central Files office in the 
Archdale Building. 512 North Salisbury Street. 
Raleigh. North Carolina, excluding information 
entitled to confidential treatment under Rule .0107 
of this Section. 

(c) Copies of CFR. permit applications, and 
permits can be made for ten cents ($0.10) per 
page. 

Statutory Authority G. S. 150B-14. 

.0106 INCORPORATION BY REFERENCE 

(a) Referenced CFR contained in this Subchapter 
are incorporated by reference. 

(b) The CFR incorporated by reference in this 
Subchapter shall automatically include any later 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



926 



PROPOSED RULES 



amendments thereto unless a specific rule specifies 
otherwise. 

(c) The CFR may be purchased from the 
Superintendent of Documents. P^ O^ Box 371954. 
Pittsburgh . PA 15250. The cost of the 40 CFR 
Parts 61 to 80 is fourteen dollars ($14.00) as of 
January 1992 price. 

Statutory Authority G.S. 150B-2I.6. 

.0107 CONFIDENTIAL INFORMATION 

(a) All information required to be submitted to 
the Commission or the Director under this 
Subchapter or Subchapter 2D of this Title shall be 
disclosed to the public unless the person submitting 
the information can demonstrate that the 
information is entitled to confidential treatment 



under G.S. 143-215. 3(a)(2). 

(b) A request that information be treated as 
confidential shall be made by the person 
submitting the information at the time that the 
submittal is made. The request shall state in 
writing reasons why the information should be 
held confidential. Any request not meeting these 
requirements shall be invalid. 

(c) The Director shall make a preliminary 
determination of which information is entitled to 
confidential treatment and shall notify the person 
requesting confidential treatment of his decision 
within 90 days of receipt of a request to treat 
information as confidential. 

(d) Information necessary to determine compli- 
ance with standards contained in 15A NCAC 2D 
or permit terms and conditions shall not be held 
confidential. 

(e) Confidential treatment of any information 
that has been classified as confidential under this 
Rule shall cease five years following the date of 
the Director's determination unless the person who 
originally requested confidential treatment, or his 
successor, requests that the information continue to 
be treated as confidential for another five years. 

(f) Any material classified as confidential or 
treated as if k were classified as confidential 
because of a request for confidential treatment 
before February \_^ 1994. shall cease to be classi- 
fied confidential on February L, 1999, unless the 
person, or his successor, who requested confiden- 
tial treatment requests that the information contin- 
ue to be treated as confidential for another five 
years. 

Statutory Authority G.S. 143-215. 3(a)(1). (2). 

.0108 DELEGATION OF ALTHORFTY 



The Director may delegate the processing of 
permit applications and the issuance of permits to 
the Deputy Director, the Chief of the Air Quality 
Section, the regional office supervisor, any air 
quality supervisor in tlie regional offices, or any 
super\'isor in tlie Permitting Branch of tlie Air 
Quality Section as he considers appropriate. This 
delegation shall not include the authority to deny 
a permit application or to revoke or suspend a 
permit. 

Statutory Authority G.S. 143-215. 3(a)(1), (4). 

.0109 COMPLIANCE SCHEDULE FOR 
PREVIOUSLY EXEMPTED 
ACTIVITIES 

(a) This Rule applies to sources that have here- 
tofore been exempted from needing a permit, but 
because of change in permit exemptions, they are 
now required to have a permit. 

(b) If a source to which this Rule applies is 
located at a facility that currently has an air quality 
permit, the source shall be added to the air quality 
permit of facility the next time that permit is 
revised or renewed, whichever occurs first. 

(c) If a source to which this Rule applies is 
located at a facility that currently does not have an 
air quality permit, the owner or operator of that 
source shall apply for a permit: 

£li by the schedule in Rule .0506 of this 
Subchapter if source is subject to the 
requirements of Section .0500 of this 
Subchapter or 

(2) by January J^ 1998. if source is not 
subject to the requirements of Section 
.05(X) of this Subchapter. 

Statutory^ Authority G.S. 143-215. 3(a)(1); 143- 
215.108; 143-215.109. 

.0110 RETENTION OF PERMFT AT 
PERMITTED FACILITY 

The permittee shall retain a copy of all active 
permits issued under this Subchapter at tlie facility 
identified in tlie permit. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108; 143-215. 109. 

.0111 APPLICABILFTi' DETERMINATIONS 

Any person may submit a request in writing to 
the Director requesting a determination as to 
whether a particular source or faciliU' that the 
person owns or operates or proposes to own or 
operate is subject to any of the permitting require- 



927 



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NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



ments under this Subchapter. The request shall 
contain such information believed to be sufficient 
for the Director to make the requested determina- 
tion. The Director may request any additional 
information that is needed to make the determina- 
tion. 



Statutory Authority G.S. 
215.108; 143-215.109. 



143-215. 3(a)(1); 143- 



SECTION .0200 - PERMIT FEES 

.0201 APPLICABILITY 

(a) This Section, except for Rule .0207 (Annual 
Emissions Reporting) of this Section, is applicable: 

(1) as of the permit anniversary date on or 
after July J^ 1994. to facilities that have 
or will have actual emissions of: 

(A) 100 tons per year or more of at least 
one regulated air pollutant; 

(B) 10 tons per year or more of at least 
one hazardous air pollutant; or 

(C) 25 tons per year or more of all haz- 
ardous air pollutants combined; and 

(2) as of the permit anniversary date on or 
after October L, 1994. to aH facilities 
other than the facilities described in 
Subparagraph (a)(n of this Rule. 

(b) Before the applicability date of Paragraph (a) 
of this Rule, the fees of 15A NCAC 2H .0609 are 
in effect. 

(c) Rule .0207 of this Section is applicable to all 
facilities as of its effective date. 

Statutory Authority G.S. 143. 215. 3(a)(1), (la), 
(lb), (Id); 143-215. 106A; 150B-21.6. 

.0202 DEFINITIONS 

For the purposes of this Section, the following 
definitions apply: 

(1) "Actual emissions" means the actual rate 
of emissions in tons per year of any air 
pollutant emitted from the facility over 
the preceding calendar year. Actual 
emissions shall be calculated using the 
sources' actual operating hours, produc- 
tion rates, in-place control equipment, 
and types of materials processed, stored. 
or combusted during the preceding calen- 
dar year. Actual emissions include emis- 
sions during violations, malfunctions, 
start-ups, and shut-downs, and include 
fugitive emissions as specified in the 
definition of major source in 40 CFR 
70.2. Actual emissions do not include a 



facility's secondary emissions such as 
those from motor vehicles associated with 
the facility and do not include emissions 
from insignificant activities listed in Rule 
.0102(b)(n of this Section. 

(2) "Before-control potential emissions" 
means the rate of emissions of any air 
pollutant which would occur at the 
facility's maximum capacity to emit any 
air pollutant under its physical and 
operational design with any operational 
limitations, such as restrictions on hours 
of operation or on the type or amount of 
material combusted, stored, or processed, 
but before any air pollution control 
equipment. Before-control potential 
emissions include fugitive emissions as 
specified in the definition of major source 
in 40 CFR 70.2. Before-control potential 
emissions do not include a facility's 
secondary emissions such as those from 
motor vehicles associated with the facility 
and do not include emissions from 
insignificant activities listed in Rule 
.0102(b)(1) of this Section. 

(3) "Title V facility" means a facility that has 
or will have potential emissions of: 

(a) 100 tons per year or more of at least 
one regulated air pollutant; 

(b) 10 tons per year or more of at least one 
hazardous air pollutant; or 

(c) 25 tons per year or more of all hazard- 
ous air pollutants combined. 

(4) "Deferred facility" means a facility which 
would be required to have permit under 
Title y except that such facility may be 
exempted under 40 CFR 70.3(b). 

(5) "Synthetic facility" means a facility 
which would be a Title V facility except 
that one or more federally-enforceable 
operational limitations in the permit 
restrict the potential emissions by limiting 
hours of operation, the type or amount of 
material combusted, stored, or processed. 
or similar parameters . Emission limita- 
tions produced by pollutant control equip- 
ment described in the permit do not 
constitute operational limitations in the 
permit for the purpose of this definition. 

(6) "Intermediate facility" means a facility 
that has or will have before-control po- 
tential emissions of: 

(a) 100 tons per year or more of at least 
one regulated air pollutant; 

(b) 10 tons per year or more of at least one 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



928 



PROPOSED RULES 



hazardous air pollutant; or 
(c) 25 tons per year or more of all hazard- 
ous air pollutants combined; 
and that is not a Title V facility, a de- 
ferred facility, nor a synthetic facility, and 
that is not solely a transportation facility. 

(7) "Small facility" means a facility that has 
or will have before-control potential 
emissions of: 

(a) less than 100 tons per year of each 
regulated air pollutant: 

(b) less than 10 tons per year of each haz- 
ardous air pollutant; and 

(c) less that 25 tons per year of all hazard- 
ous air pollutants combined; 

and that is not a Title V facility, a de- 
ferred facility, nor a synthetic facility, and 
that is not solely a transportation facility. 

(8) "General facility" means a facility obtain- 
ing a permit under Rule .0310 or .0509 
of this Subchapter. 

Statutory Authority G.S. 143. 215. 3(a)(1). (la), 
(lb), (Id); 1508-21.6. 

.0203 PERMIT AND APPLICATION FEES 

(a) The owner or operator of any facility holding a permit shall pay the following permit fees: 

ANNUAL PERMIT FEES 
(FOR CALENDAR YEAR 1993) 

Basic Nonattain- 



Facility Tonnage Permit ment Area 

Category Factor Fee Added Fee 

Title V $14.20 $4900 $2500 

Deferred or 

Synthetic $1500 

Intermediate $ 800 

Small $ 250 

Transportation $ 

General 50% of the otherwise applicable fee 

A facility, other than a Title V facility, which has been in compliance may be eligible for a 25% discount 
from the annual permit fees as described in Paragraph (c) of Rule .0205 of this Section. Annual permit fees 
for Title V facilities shall be adjusted for inflation as described in Rule .0204 of this Section. Annual permit 
fees for Title V facilities consist of the sum of the applicable fee elements. 

(b) In addition to the annual permit fee, a permit applicant shall p ay a non-refundable permit application 
fee as follows: 

PERMIT APPLICATION FEES 



CfMxr- 





(FOR CALENDAR YEAR 1993) 






New or 




Facility 


New or Significant 


Minor 


Category 


Modification Modification 


Modification 



ship 
Change 



929 8:11 NORTH CAROLINA REGISTER September 1, 1993 



PROPOSED RULES 



Title V 
(before Title 

V Program) $ 700 $50 
Title V 

(after Title 

V Program) $7000 $700 $50 
Title V (PSD 

or NSR/NAA) $10600 $50 

Title V (PSD 

and NSR/NAA) $20500 $50 

Deferred or 

Synthetic $ 400 $50 

Intermediate $ 100 $50 

Small I 50 $25 

Transportation $ 400 $50 

General - 50% of the otherwise applicable fee $25 

Permit application fees for Title V facilities shall be adjusted for inflation as described in Rule .0204 of this 
Section. 

(c) If a facility, other than a general facility, belongs to more than one facility category, the fees shall 
be those of the applicable category with the highest fees. If a permit application belongs to more than one 
type of application, the fee shall be that of the a pplicable permit a pplication type with the highest fee. 

(d) The tonnage factor fee shall be applicable only to Title V facilities. It shall be computed by 
multiplying the tonnage factor indicated in the table in Paragraph (a) of this Rule by the facility's combined 
total actual emissions of all regulated air pollutants, rounded to the nearest ton. The calculation shall not 
include: 

(1) carbon monoxide; 

(2) any pollutant that is regulated solely because it is a Class ] or II substance listed under Section 
602 of the federal Clean Air Act (ozone depletors); 

(3) any pollutant that is regulated solely because it is subject to a regulation or standard under 
Section 1 12(r) of the federal Clean Air Act (accidental releases); and 

(4) the amount of actual emissions of each pollutant that exceeds 4,000 tons per year. 

Even though a pollutant may be classified in more than one pollutant category, the amount of pollutant 
emitted shall be counted only once for tonnage factor fee purposes and in a pollutant category chosen by 
the permittee. If a facility has more than one permit, the tonnage factor fee for the facility's combined total 
actual emissions shall be paid only on the permit whose anniversary date first occurs after the date of 
application of the fees of this Rule. 

(e) The nonattainment area added fee shall be applicable only to facilities subject to and located in a 
nonattainment area defined in 15A NCAC 2D .0531 (Sources in Nonattainment Areas) or 15A NCAC 2D 
■0900 (Volatile Organic Compounds). 

£f) A Title y (PSD or NSR/NAA) facility is a facility whose application is subject to review under 15A 
NCAC 2D .0530 (Prevention of Significant Deterioration) or fSA NCAC 2D .0531 (Sources in 
Nonattainment Areas). 

(g) A Title V (PSD and NSR/NAA) facility is a facility whose application is subject to review under 15A 
NCAC 2D .0530 (Prevention of Significant Deterioration) and i5A NCAC 2D .0531 (Sources in 
Nonattainment Areas). 

(h) Minor modification permit applications which are group processed require the payment of only one 
permit application fee for the group. 

ii) No permit application fee is required for renewal of an existing permit, for changes to an unexpired 
permit when the only reason for the changes is initiated by the Director or the Commission, for a name 
change with no ownership change, for a change under Rule .0523 (Changes Not Requiring Permit 
Revisions) of this Section, or for a construction date change, a test date change, a reporting procedure 
change, or a similar change. 

Statutory Authority G.S. 143.215. 3(a)(1), (la), (lb), (Id); 150B-21.6. 



8:11 NORTH CAROLINA REGISTER September 1, 1993 930 



PROPOSED RULES 



.0204 INFLATION ADJUSTMENT 

Beginning in 1994, the fees of Rule .0203 of this 
Section for Title V facilities shall be adjusted as of 
January 1st of each year for inflation. The infla- 
tion adjustment shall be done by the method 
described in 40 CFR 70. 9(b)(2)(iv). except that the 
method shall be altered to account for the fact that 
the fees shown in Rule .0203 of this Section are 
for calendar year 1993. 

Statutory Authority G.S. 143. 215. 3(a)(1), (la), 
(lb), (id); 150B-21.6. 

.0205 OTHER ADJUSTMENTS 

(a) The total payment for fees required for all 
permits under G.S. 143-215. 3(a)( lb) (facilities 
other than Title V facilities, or general facilities 
permitted pursuant to Rule .0509 of this Subchap- 
ter) for any single facility shall not exceed seven 
thousand five hundred dollars ($7.500) per year. 

(b) No fees are required to be paid under this 
Section by a farmer who submits an application or 
receives a permit that pertains to his farming 
operations. 

(c) If a facility other than a Title V facility has 
been in fuU compliance with all applicable admin- 
istrative, regulatory, and self-monitoring reporting 
requirements and permit conditions during the 
previous calendar year, the annual permit fee shall 
be 25% less than that listed in Rule .0203 of this 
Section. A facility shall be considered to have 
been in compliance during the previous calendar 
year if it has not been sent any Notices of Non- 
compliance or Notices of Violation during that 
calendar year. 

£d) If a facility changes so that its facility cate- 
gory changes, the annual fee changes with the next 
annual fee. 

(e) A facility that is moved to a new site may 
receive credit toward new permit fees for any 
unused portion of an annual fee if the permit for 
the old site [s relinquished. 

Statutory Authority G.S. 143. 215. 3(a)(1), (la), 
(lb). (Id); 150B-21.6. 

.0206 PAYMEIVT OF FEES 

(a) Payment of fees required under this Section 
shall be by check or money order made payable to 
the N.C. Department of Environment, Health and 
Natural Resources. Annual permit fee payments 
shall refer to the permit number. 

(b) If. within 30 days after being billed, the 
permit holder fails to pay an annual fee required 
under this Section, the Director may initiate action 



to terminate the permit. 

(c) A holder of multiple permits may arrange to 
consolidate the payment of annual fees into one 
annual payment. 

(d) The permit holder shall submit a source 
reduction and recycling description in accordance 
with G.S. 143-215. 108(g) along with the annual 
permit fee payment. The description shall include 
a summary of activities related to source reduction 
and recycling and of quantities of air emissions 
reduced and material recycled during the previous 
year and a summary of plans for further source 
reduction and recycling. 

(e) The payment of the permit application fee 
required by this Section shall accompany the 
application and is non-refundable. 

(f) The Division shall annually prepare and 
make publicly available an accounting showing 
aggregate fee payments collected under this Sec- 
tion from facilities which have obtained or will 
obtain permits under Section .0500 of this Sub- 
chapter except synthetic facilities and showing a 
summary of reasonable direct and indirect expendi- 
tures required to develop and administer the Title 
V permit program. 

Statutory Authority G.S. 143. 215. 3(a)(1), (la), 
(lb), (id): 143-215.108: 150B-21.6. 

.0207 .\NNUAL EMISSIONS REPORTING 

The owner or operator of: 
ID a Title V facility: or 
(2) any other facility, other than a transporta- 
tion facility, that is in a nonattainment 
area defined in 15A NCAC 2D .0531 and 
that has actual emissions of 25 tons per 
year or more of nitrogen oxides or vola- 
tile organic compounds: 
shall report by June 30th of each year the actual 
and potential emissions of each regulated pollutant, 
each hazardous air pollutant, and each toxic air 
pollutant that is listed in 15A NCAC 2D .1104, 
from each source within the facility during the 
previous calendar year. The report shall be in or 
on such form as may be established by the Direc- 
tor. This annual reporting requirement shall begin 
with calendar year 1993 emissions. The accuracy 
of the report shall be certified by a responsible 
official of the facility as defined under 40 CFR 
70.2. Reporting may be required for other facili- 
ties by permit condition or pursuant to 15A NCAC 
2D .0202 (Registration of Air Pollution Sources). 

Statutory Authority G.S. 143. 215. 3(a)(1), (la), 
(lb). (Id): 143-215.65: 143-215.107: 143B-282: 



931 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



150B-21.6. 

SECTION .0300 - CONSTRUCTION AND 
OPERATION PERMIT 

.0301 APPLICABILITY 

(a) Except for the permit exemptions allowed 
under Rules .0102 and .0302 of this Subchapter, 
the owner or operator of a new, modified, or 
existins facility or source shall not begin construc- 
tion or operation without first obtaining a construc- 
tion and operation permit in accordance with the 
standard procedures under Section .0300; howev- 
er. Title V sources are subject to the Title V 
procedures under Section .0500 including the acid 
rain procedures under Section .0400 for Title IV 
sources. 

(h) The owner or operator of a source required 
to have a permit under this Section may also be 
subject to the air toxic permit procedures under 
15A NCAC 2D .0610. 

{c} TTie owner or operator of a source required 
to have a permit under this Section shall pay 
permit fees required under Section .0200 of this 
Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108. 

,0302 ACTIVITIES EXEMPTED FROM 
PERMIT REQUIREMENTS 

(a) The exemptions in this Rule a pply only to 
this Section. They do not apply to Section .0500 
(Title V Procedures) of this Subchapter. 

(b) If a source is subject to any of the following 
rules, the source is not exempted from permit 
requirements, and the exemptions in Paragraph (c) 
or id] of this Rule do not apply: 

(1) new source performance standards 
under 15A NCAC 2D .0524. except 
new residential wood heaters; 

(2) national emission standards for hazard- 
ous air pollutants under 15A NCAC 2D 
.0525. except asbestos demolition and 
renovation activities; 

(3) prevention of significant deterioration 
under 15A NCAC 2D .0530; or 

(4) new source review under 15A NCAC 
2D .0531 and .0532; 

(5) sources of volatile organic compounds 
subject to the requirements of 15A 
NCAC 2D .0900 that are located \n 
Mecklenburg and Gaston Counties; 

(6) sources required to apply maximum 
achievable control technology for haz- 



01 

18] 



ardous air pollutants under 15A NCAC 
2D .1109 or 40 CFR Part 63; 
sources at facilities subject to 15A 



NCAC 2D .1100; or 

facilities subject to Title V permitting 

procedures under Section .0500 of this 

Subchapter. 
(c) In addition to the exemptions contained in 
Rule .0102 of this Section, the following sources 
are not required to obtain a permit or permit 
modification under this Section: 

(1) any facility without control devices 
whose actual emissions of particulate, 
sulfur dioxide, nitrogen oxides, volatile 
organic compounds, or carbon monox- 
ide are each less than five tons per year 
and whose potential emissions of each 
of these pollutants are less than 100 
tons per year; 

(2) paint spray booths or other painting or 
coating operations without control 
devices located at a facility whose 
facility-wide actual emissions of: 

(A) Volatile organic compounds are less 
than five tons per year, and 

(B) Photochemically reactive solvent 
emissions under 15A NCAC 2D 
■0518 are less than 40 pounds per 
day; 

(3) gasoline service stations or gasoline 
dispensing facilities; 

(4) bulk gasoline plants with an average 
daily throughput of less than 4000 
gallons; 

(5) perchloroethylene dry cleaners; 

(6) fuel combustion equipment firing exclu- 
sively kerosene. No. 1 fuel oil. No. 2 
fuel oil, equivalent unadulterated fuels, 
gaseous fuel, or a mixture of these fuels 
with a total heat input rating less than 
40 million BTU per hour for which 
construction, modification, or recon- 
struction commenced before June 9^ 
1989; 

(7) a source whose emissions are regulated 
only under Section 1 12(r) or Title VI of 
the federal Clean Air Act; 

(8) laboratory equipment used exclusively 
for chemical or physical analysis for 
research and development; or 

(9) emergency use generators and other 
internal combustion engines, except 
motor vehicles, that produce no more 
than: 

(A) 210 kilowatts or 300 horsepower for 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



932 



PROPOSED RULES 



natural gas-fired engines. 

(B) 550 kilowatts or 750 horsepower for 
liquified petroleum gas-fired engines, 
or 

(C) 150 kilowatts or 275 horsepower for 
diesel-fired engines. 

(d) The owner or operator of any facility or 
source required to have a permit under this Section 
may request the Director to exempt the facility or 
source from the requirement to have a permit. 
The request shall be in writing. Along with the 
request, the owner or operator shall submit sup- 
porting documentation, including ambient model- 
ing, to show that air quality and emission control 
standards will not be, nor are likely to be^ contra- 
vened. If the documentation shows to the satisfac- 
tion of the Director that air quality and emission 
control standards will not be^ nor are likely to be. 
contravened, a permit shall not be required. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108. 

.0303 DEFINITIONS 

For the purposes of this Section, the following 
definitions apply: 
(1) "New facility" means a facility that is 
receiving a permit from the Division for 
construction and operation of a source of 
an emissions polluting operation that it is 
not currently permitted. 
(2} "Modified facility" means a modification 
of an existing facility or source and: 
(a) The permitted facility or source is being 
modified in such a manner as to require 
the Division to reissue the permit, or 
(c) A new source is being added that re- 
quires the Division to reissue the per- 
mit. 
For a facility or source for which only 
name and ownership changes, construction 
date changes, test date changes, or report- 
ing procedure changes are being made is 
not considered a modified facility. 

(3) "Plans and Specifications" means the 
completed application and any other 
documents required to define the operat- 
ing conditions of the air pollution source. 

(4) "Title IV source" means a source that is 
required to be permitted following the 
procedures under Section .0400 of this 
Subchapter. 

(5) "Title V source" means a source that is 
required to be permitted following the 
procedures under Section .0500 of this 



Subchapter. 
Statutory Authority G. S. 143-213; 143-215. 3(a)(1). 

.0304 APPLICATIONS 

(a) Permit, permit modification, or permit 
renewal applications may be obtained and shall be 
filed in writing in accordance with Rule .0104 of 
this Subchapter. 

(b) Along with filing a complete application 
form, the applicant shall also file the following: 

(1) for a new facility or an expansion of 
existing facility, a consistency determi- 
nation in accordance with G.S. 143- 
215.108(f) that: 

(A) bears the date of receipt entered by 
the clerk of the local government, or 

(B) consists of a letter from the local 
government indicating that all zoning 
or subdivision ordinances are met by 
the facility; 

(2) for a new facility or modification of an 
existing facility, a source reduction and 
recycling description in accordance with 
G.S. 143-215. 108(g): and 

(3) if required by the Director, information 
showing that: 

(A) Tlie applicant is financially qualified 
to carry out the permitted activities. 
or 

(B) The applicant has substantially com- 
plied with the air quality and emis- 
sions standards applicable to the 
permitted activities. 

(c) Applicants shall file air permit applications 
at least 90 days before projected date of construc- 
tion of a new source or modification of an existing 
source. For sources subject to the requirements of 
15A NCAC 2D .0530 (prevention of significant 
deterioration) or .0531 (new source review for 
sources in nonattainment areas), applicants shall 
file air permit applications at least 180 days before 
projected construction date. 

(d) If no modification has been made to the 
originally permitted source, application for permit 
renewal or ownership change may be made by 
letter to the Director at the address specified in 
Rule .0104 of this Subchapter. The renewal or 
ownership change letter must state that there have 
been no changes in the permitted facility since the 
permit was last issued. However, the Director 
may require the applicant for ownership change to 



submit additional information showing that: 

(1 ) The applicant is financially qualified to 
carry out the permitted activities, or 



933 



8:11 



NORTH CAROLINA REGISTER 



September I, 1993 



PROPOSED RULES 



(2) The applicant has substantially complied 
with the air quality and emissions stan- 
dards applicable to the permitted activi- 

(e) Applicants shall file applications for renewals 
such that they are received by the Division at least 
90 days before expiration of the permit. 

(f) The permittee shall file requests for permit 
name or ownership changes as soon as the permit- 
tee is aware of the imminent name or ownership 
change. 

(g) The a pplicant shall submit copies of the 
application package as follows: 

(1) six copies for sources subject to the 
requirements of 15A NCAC 2D .0530, 
.0531, or .1200; or 

(2) three copies for sources not subject to 
the requirements of 15A NCAC 2D 
.0530. .0531. or .1200. 

The Director may at any time during the applica- 
tion process request additional copies of the com- 
plete application package from the applicant. 

(h) The applicant shall submit the same number 
of copies of additional information as required for 
the application package. 

£i} Whenever the information provided on the 
permit application forms does not adequately 
describe the source and its air cleaning device, the 
Director may request that the applicant provide 
any other information that the Director considers 
necessary to evaluate the source and its air clean- 
ing device. Before acting on any permit applica- 
tion, the Director may request any information 
from an applicant and conduct any inquiry or 
investigation that he considers necessary to deter- 
mine compliance with applicable standards. 

(j) Permit a pplications submitted pursuant to this 
Rule shall be signed as follows: 

(1) for corporations, by a principal execu- 
tive officer of at least the level of vice- 
president, or his duly authorized repre- 
sentative, if such representative is 
responsible for the overall operation of 
the facility from which the emissions 
described in the permit application form 
originates; 

for partnership or limited partnership, 
by a general partner; 
for a sole proprietorship, by the propri- 
etor; 



12} 
13) 
£4} 



for municipal, state, federal . or other 
public entity, by a principal executive 
officer, ranking elected official, or 
other duly authorized employee, 
(k) A non-refundable permit application process- 



ing fee shall accompany each application. The 
permit a pplication processing fees are defined in 
Section .0200 of this Subchapter. Each permit or 
renewal application is incomplete until the permit 
application processing fee is received. 

£j} The a pplicant shall keep on file one complete 
copy of the application package and any informa- 
tion submitted in su pport of the a pplication pack- 
age. 



Statutory Authority G.S. 
215. 108. 



143-215. 3(a)(1); 143- 



.0305 APPLICATION SUBMITTAL 
CONTENT 

If an applicant does not submit, at a minimum, 
the following information with his application 
package, the application package shall be returned: 

(1) for new facilities and modified facilities: 

(a) an application fee as required under 
Section .0200 of this Subchapter. 

(b) a consistency determination as required 
under Rule .0304(b)(1) of this Section. 

(c) a financial qualification or substantial 
compliance statement if required, and 

(d) applications as required under Rule 
.0304(a) and (g) of this Section and 
signed as required by Rule .0304(j) of 
this Section; 

(2) for renewals: two copies of applications 
as required under Rule .0304(a) and (d) 
of this Section and signed as required by 
Rule ■0304(j) of this Section; 

(3) for a name change: two copies of a letter 
signed by the appropriate individual listed 
in Rule .0304(j) indicating the current 
facility name, the date on which the name 
change shall occur, and the new facility 
name; 

(4) for an ownership change: an application 
fee as required under Section .0200 of 
this Subchapter and: 

(a) two copies of a letter sent by each the 
seller and the buyer indicating the 
change, or 

(b) two copies of a letter sent by either 
bearing the signature of both the seller 
and buyer, and 

containing a written agreement with a 
specific date for the transfer of permit 
responsibility, coverage. and liability 
between the current and new permittee; 
and 

(5) for corrections of typographical errors; 
changes name, address, or telephone 



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934 



PROPOSED RULES 



number of any individual identified in the 
permit; changes in test dates or construc- 
tion dates; or similar minor changes: 
two copies of a letter signed by the ap- 
propriate individual listed in Rule 
.0304(i) of this Section describing the 
proposed change and explaining the need 
for the proposed change. 

Statutory Authority G.S. 143-215. 3(a)(l ): 143- 
215. 108. 

.0306 PERMITS REQUIRING PUBLIC 
PARTICIPATION 

(a) The Director shall provide for public notice 

for comments with an opportunity to request a 

public hearing on draft permits for the following: 

(1) any source that may be designated by 

the Director based on significant public 

interest; 

ISA NCAC 2D 



ill 



ii) 



a source to which 

.0530 or .0531 applies; 

a source whose emission limitation is 

based on a good engineering practice 

stack height that exceeds the height 

defined [n JJA NCAC 2D 

.0533(a)(4)(A). (B), or (C); 

a source required to have controls more 

stringent than the applicable emission 

standards in Section 15A NCAC 2D 

.0500 in accordance with 15A NCAC 



2D .0501 when necessary to comply 
with an ambient air quality standard 
under 15A NCAC 2D .0400; 

(5) any physical or operational limitation 
on the capacity of the source to emit a 
pollutant, including air cleaning device 
and restrictions on hours of operation 
or on the type or amount of material 
combusted, stored, or processed, when 
such a limitation js necessary to avoid 
the applicability of rules m 15A NCAC 
2D .0900; 

(6) alternative controls different than the 
applicable emission standards in 15A 
NCAC 2D .0900 m accordance with 
15A NCAC 2D .0952: 

(7) an alternate compliance schedule 
promulgated in accordance with 15A 
NCAC 2D .0910; 

(8) a limitation on the quantity of solvent- 
borne ink that may be used by a 
printing unit or printing system in 
accordance with 15A NCAC 2D .0936; 

(9) an allowance of a particulate emission 



10) 



rate of 0.08 grains per dry standard 
cubic foot for an incinerator constructed 
before July L, 1987. jn accordance with 
15A NCAC 2D .1205(b)(2); 
an alternative mix of controls under 
15A NCAC 2D .0501(f); or 
a source that is subject to the 
requirements of 15A NCAC 2D .1109 
because of 15A NCAC 2D .ll09(e>. 
(b) If EPA requires the State to submit a permit 
as part of the North Carolina State Implementation 
Plan for Air Quality (SIP) and if the Commission 
approves a permit containing any of the conditions 
described in Paragraph (a) of this Rule as a part of 
the SIP, the Director shall submit the permit to the 
EPA on behalf of the Commission for inclusion as 
part of the federally ap proved SIP. 

Statutory Authority G.S. 143-215. 3(a)(1), (3); 143- 
214(b)/ 143-215. 108. 

.0307 PUBLIC PARTICIPATION 
PROCEDUT^S 

(a) This Rule does not apply to sources subject 
to the requirements of i5A NCAC 2D .0530 or 
.0531 or Appendix S or 40 CFR Part 51. For 
sources subject to the requirements of I5A NCAC 
2D .0530 or .0531 or Appendix S of 40 CFR Part 
51. the procedures in procedures in 15A NCAC 
2D .0530 or .0531 or Appendix S of 40 CFR Part 
51 shall be followed, respectively. 

(b) The public notice shall be given by publica- 
tion in a newspaper of general circulation m the 
area where the facility is located and shall be 
mailed to persons who are on the Division's 
mailing list for air quality permit notices. 

(c) The public notice shall identify: 
(I) the affected facility; 

the name and address of the permittee; 
the name and address of the person to 
whom to send comments and requests 
for public hearing; 

the name, address, and telephone num- 
ber of a person from whom interested 
persons may obtain additional informa- 
tion, including copies of the draft per- 
mit, the application, compliance plan, 
monitoring and compliance reports, all 
other relevant supporting materials, and 
all other materials available to Division 
that are relevant to the permit decision; 

(5) the activity or activities involved in the 
permit action: 

(6) any emissions change involved in any 
permit modification; 



01 
Ol 



(41 



935 



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PROPOSED RULES 



(7) a brief description of the public com- 
ment procedures; 

(8) the procedures to follow to request a 
public hearing unless a public hearing 
has already been scheduled; and 

(9) the time and place of any hearing that 
has already been scheduled. 

(d) The notice shall allow 30 days for public 
comments. 

(e) If the Director finds that a public hearing is 
in the best interest of the public, the Director shall 
require a public hearing to be held on a draft 
permit. Notice of a public hearing shall be given 
at least 30 days before the public hearing. 

(f) The Director shall make available for public 
inspection in at least one location in the region 
affected, the information submitted by the permit 
applicant and the Division's analysis of that appli- 
cation. 

(g) Persons who desire to be placed on the 
Division's mailing list for air quality permit 
notices shall send their request to the Director, 
Division of Environmental Management, P.O. Box 
29535. Raleigh, North Carolina 27626-0535 and 
shall pay an annual fee of thirty dollars ($30.00). 

(h) Any persons requesting copies of material 
identified in Subparagraph (b)(4) of this Rule shall 
pay ten cents ($0.10) a page for each page copied. 
Confidential material shall be handled in accor- 
dance with Rule .0107 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1), (3): 143- 
215.4(b): 143-215.108. 

.0308 FINAL ACTION ON PERMIT 
APPLICATIONS 

(a) The Director may: 

(1) issue a permit, permit modification, or 
a renewal containing the conditions 
necessary to carry out the purposes of 
G.S. Chapter 143, Article 21B; 

(2) rescind a permit upon request by the 
permittee; 

(3) deny a permit application when neces- 
sary to carry out the purposes of G.S. 
Chapter 143, Article 218. 

(b) Any person whose application for a permit, 
permit modification, or renewal is denied or is 
granted subject to conditions which are unaccept- 
able to him shall have the right to appeal the 
Director's decision under Article 3 of G.S. 1508. 
The person shall have 30 days following the notice 
of the Director's decision on the application or 
permit iji which to appeal the Director's decision. 
The permit becomes final if the a pplicant does not 



contest the permit within this 30-day period. 

(c) TTie Director shall issue or renew a permit 
for a period of time that the Director considers 
reasonable, but such period shall not exceed five 
years. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108. 

.0309 TERMINATION, MODIFICATION 
AND REVOCATION OF PERMITS 

(a) The Director may terminate, modify, or 
revoke and reissue any permit issued under this 
Section if: 

(1) The information contained in the appli- 
cation or presented in support thereof is 
determined to be incorrect; 



12} 

13J 
(41 

151 



The conditions under which the permit 

or permit renewal was granted have 

changed; 

Violations of conditions contained in 

the permit have occurred; 

TTie permit holder fails to pay the fee 

required under Section .0200 of this 

Subchapter within 30 days after being 

billed; 

The permittee refuses to allow the 

Director or his authorized 

representative upon presentation of 

credentials: 

(A) to enter the permittee's premises in 
which a source of emissions is located 
or in which any records are required 
to be kept under terms and conditions 
of the permit; 

(B) to have access to any copy or records 
required to be kept under terms and 
conditions of the permit; 

(CI to inspect any source of emissions, 
control equipment. and any 
monitoring equipment or method 
required in the permit; or 
(D) to sample any emission source at the 
facility; 
(6) The Director finds that termination, 
modification. or revocation and 
reissuance of a permit is necessary to 
carry out the purpose of G.S. Chapter 
143. Article 218. 

(b) The operation of a facility or source after its 
permit has been revoked is a violation of this 
Section and G.S. 143-215.108. 

(c) The permittee may request modifications to 
his permit. 

(d) When a permit is modified, the proceedings 



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936 



PROPOSED RULES 



shall affect only those parts of the permit that are 
being modified. 

(e) Any person whose permit is terminated, 
modified, or revoked and reissued shall have the 
right to appeal the Director's decision under 
Article 3 of G.S. 150B. The person shall have 30 
days following the notice of the Director's decision 
on the termination, modification, or revocation and 
reissuance in which to appeal the Director's 
decision. 

Statutory Authority G.S. 143-215. 3(a)(l ), 
(la). (lb): 143-215.108; 143-215.114. 

.0310 PERAnXTING OF NUMEROUS 
SIXnUAR FACILITIES 

(a) The Director may issue a permit to cover 
numerous similar facilities or sources. 

(b) The Director shall not issue a permit under 
this Rule unless the following conditions are meet: 

(1) No facility covered under the permit 
rs'pically has actual emissions of more 
than 50 tons per year of particulates. 
sulfur dioxide, nitrogen oxides, or 
Nolatile organic compounds or five tons 
per year of lead: 

(2) There is no unique difference that 
would require special permit conditions 
for any individual facility; and 

(3) No unique analysis is required for any 
facility covered under the permit. 

(c) A permit issued under this Rule shall identify 
criteria by which facilities or sources may qualify 
for the permit. The Director shall grant the terms 
and conditions of the permit to facilities or sources 
that qualify. 

(d) The facility or source shall be subject to 
enforcement action for operating without a permit 
jf the facility or source is later determined not to 
qualif\' for the terms and conditions of the permit 
issued under this Rule. 

(e) The ov.ner or operator of a facilit>' or source 
that qualifies for a permit issued under this Rule 
shall apply for coverage under the terms of the 
permit issued under this Rule or shall apply for a 
standard permit under this Section. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.108. 

.0311 PERAHTTEVG OF FACILITIES AT 
MUXTIPLE TEMPORARY SITES 

(a) The Director may issue a single permit 
authorizing emissions from a facility or source at 
multiple temporary sites. 



(b) In order for a facility or source to qualify 
for a multiple temporary sites under this Rule, the 
operation must invohe at least one change of site 
during the term of the permit. 

(c) Permits for facilities at multiple temporary 
sites shall include: 

(1 ) the identification of each site; 

the conditions that will assure compli- 



Ql 



i3i 



14) 



ance with all applicable requirements at 

all appro \'ed sites; 

a requirement that the permittee notify 

the Division at least 10 days ]n advance 

of each change of site; and 

the conditions that assure compliance 

with all other provisions of this Section. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108. 

SECTION .0400 - ACID RAIN 
PROCEDURES 

.0401 APPLICABILITY 

(a) The procedures and requirements under this 
Section do not apply until the EPA approves this 
Section and Section .0500 of this Subchapter. 

(b) Each of the following units shall be an 
affected unit, and any facility that includes such a 
unit shall be an affected facility, subject to the 
requirements of the Acid Rain Program: 

iiJ A unit listed in 40 CFR Part 73. Sub- 
part B^ Table L 

(2) A unit that is identified as qualif\'ing 
for an allowance allocation under Sec- 
tions 403 and 405 of the federal Clean 
Air Act and any other existing utility 
unit, except a unit under Paragraph (c) 
of this Rule. 

(3) A utility unit, except a unit under Para- 
graph (c) of this Rule, that: 

(A) is a new unit; or 

(B) did not serve a generator with a 
nameplate capacity greater than 25 
MWe before November 15. 1990. but 
serves such a generator on or after 
November 15. 1990. 

(c) The follov.'ing types of units are not affected 
units subject to the requirements of the Acid Rain 
Program: 

( 1) A simple combustion turbine that 
commenced operation before November 
15. 1990. 

(2) Any unit that commenced commercial 
operation before November 15. 1990. 
and that did not, as of November 15, 



937 



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September 1, 1993 



PROPOSED RULES 



1990. and does not currently, serve a 
generator with a nameplate capacity of 
greater than 25 MWe. 

(3) Any unit that, during 1985. did not 
serve a generator that produced 
electricity for sale and that did not, as 
of November 15. 1990. and does not 
currently, serve a generator that 
produces electricity for sale. 

(4) A non-utility unit. 

(5) Any other units under CFR 40 Part 
72.6. 

Statutory^ Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8); 143-215. 108. 

.0402 DEFINITIONS 

The terms used in these Rules shall have the 
meanings set forth in the federal Clean Air Act 
and in this Subchapter as follows: 

(1) "Acid rain emissions reduction 



m 



01 



14} 



15} 
(6} 

m 

18} 



requirement" means a requirement under 

the Acid Rain Program to reduce the 

emissions of sulfur dioxide or nitrogen 

oxides from a unit to a specified level or 

by a specified percentage. 

"Acid Rain Program" means the national 

sulfur dioxide and nitrogen oxides air 

pollution control and emissions reduction 

program established in accordance with 

Title IV. 

"Act" means the Clean Air Act. 42 

U.S.C. 7401, et. seq. as amended by 

Public Law No. 101-549 (November 15. 

1990). 

"Administrator" means the administrator 

of the United States Environmental 

Protection Agency (EPA) or the 

Administrators's duly authorized 

representative. 

"Affected Facility" means a facility that 

includes one or more affected units. 

"Affected Unit" means a unit that is 



subject to any acid rain emissions 
reduction requirement or acid rain 
emissions limitation. 
"Commenced commercial operation" 
means to have begun to generate 
electricity for sale, including the sale of 
test generation. 

"Designated representative" means a 
responsible natural person authorized by 
the owners and operators of an affected 
facility, and of all the affected units at 
the facility, as evidenced by a certificate 



£9} 
(10) 

an 



(13) 
(14) 



(15) 



(16) 



17) 



of representation submitted in accordance 
with CFR 40 Part 70, Subpart R, to 
represent and legally bind each owner 
and operator, as a matter of federal law. 
in matters pertaining to the Acid Rain 
Program. Whenever the term 

"responsible official" is used in this 
Subchapter it shall be deemed to refer to 
the "designated representative" with 
regard to all matters under the Acid Rain 
Program. 

"Draft permit" means the version of the 
permit, or the acid rain portion of an 
operating permit, that a permitting 
authority offers for public comment. 
"Facility" means any contiguous group of 
one or more sources. 



"Generator" means any device that 
produces electricity and was or would 
have been required to be reported as a 
generating unit pursuant to the United 
States Department of Energy Form 960 
(1990 edition). 

"mmBTU" means millions of British 
Thermal Units. 



"MWe" means megawatts of electricity. 
"NADB" means the National Allowance 
Data Base. 



"Nameplate capacity" means the 
maximum electrical generating output 
(expressed in MWe) that a generator can 
sustain over a specified period of time 
when not restricted by seasonal or other 
deratings. as listed in the NADB under 
the data fieW "NAMECAP" if the 
generator is listed in the NADB or as 
measured in accordance with the United 
States Department of Energy standards if 
the generator is not listed in the NADB. 
"Owner or operator" means any person 
who operates, controls, or supervises an 
affected unit or an affected facility and 
shall include, but not be limited to. any 
holding company, utility system, or plant 
manager of an affected unit or affected 
facility. 

"Permit" as it is used in this Section 
means the legally binding written 
document, or portion of such document, 
issued by the Director including any 
permit revisions, specifying the Acid 
Rain Program requirements applicable to 
an affected facility, to each affected unit 
at an affected facility, and to the owners 
and operators and the designated 



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938 



PROPOSED RULES 



(18) 



(19) 
(20) 



(21) 



(22) 



(23) 



(24) 



(25) 
(26) 



representative of the affected unit or the 
affected facility. In addition, the permit 
satisfies the procedures under Section 
.0500 of this Subchapter. 
"Permit revision" means a permit 
modification, fast track modification, 
administrative permit amendment, or 
automatic permit amendment, as provided 
in 40 CFR Part 72. Subpart H. 
"Permitting authority" means either (1) 
the Administrator or (ii) the Director. 
"Phase 1 utility" refers to any of 1 10 
utility plants identified by the EPA and 
listed in Section 404, Table A of the Act. 
Each unit has a nameplate capacity of 
greater than 100 MWe and emits greater 
than 2.5 Ibs/mmBTU of sulfur dioxide. 
"Phase II utility" refers to the inclusion 
of additional utilities with capacities 
greater than 25 MWe to the Acid Rain 
Program. 

"Secretary of Energy" refers to the 
Secretary of the United States 
Department of Energy or the Secretary's 
duly authorized representative. 
"Simple Combustion Turbine" means a 
unit that [s a rotary engine driven by a 
gas under pressure that is created by the 
combustion of any fuel. This term 
includes combined-cycle units without 
auxiliary firing but excludes such units 
with auxiliary firing. 
"Source" means any governmental, 
institutional, commercial or industrial 
structure, installation, plant or building 
that emits or has the potential to emit any 
regulated air pollutant under the Act. 
"Unit" means a fossil fuel-fired 
combustion device. 



'Utility" means any person that sells 



electricity. 



Statutory Authority G.S. 143-215. 3(aJ(lJ; 143- 
215.107(a)(8); 143-215.108. 

.0403 NEW UNITS EXEMPTION 

(a) Applicability. This Rule applies to any new 
utility unit that serves one or more generators with 
total nameplate capacity of 25 MWe or less and 
burns only fuels with a sulfur content of 0.05 
percent or less by weight, as determined for a 
sample of each fuel deli\'ery using the methods 
specified in 40 CFR 72.7(d)2. 

(b) Exemption: The designated representative. 
authorized in accordance with 40 CFR 72.20, of a 



facility that includes a unit under Paragraph (a) of 
this Rule may petition the Director for a written 
exemption for the unit from certain requirements 
of the Acid Rain Program in accordance with 40 
CFR 72.7. 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215. 107(a)(8); 143-215. 108. 

.0404 RETIRED UNITS EXEMPTION 

(a) Applicability. This Rule applies to any 
affected unit that [s retired prior to the issuance 
(including renewal ) of a permit for the unit as a 
final agency action. 

(b) Exemption. The designated representative, 
authorized in accordance with 40 CFR Part 72. 
Subpart B^ of a facility that includes a unit under 
Paragraph (a) of this Rule may petition the 
Director for a written exemption, or to renew a 
written exemption, for the unit from certain 
requirements of 40 CFR Part 72 in accordance 
with 40 CFR 72.8. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.W7(a)(8); 143-215.108. 

.0405 REQUIREMENT TO APPLY 

(a) Duty to apply. The designated representative 
of any facility with an affected unit shall submit a 
complete permit application by the applicable 
deadline in Paragraphs (b) and (c) of this Rule. 
The Owner or Operator shall not operate the 
facility without a permit that states its Acid Rain 
Program requirements. 

(b) Deadlines: 

(1) Phase II. For any facility with an 
existing unit under Subparagraphs 
(b)(1) or ilj of Rule .0401 of this 
Section, the designated representative 
shall submit a complete permit 
application governing such unit during 
Phase II to the Director on or before 
January j_^ 1996. 

(2} New Units. 

(A) For any facility with a new unit under 
Part (b)(3)(A) of Ruje .0401, the 
designated representative shall submit 
a complete permit application 
governing such unit to the Director at 
least 24 months before the later of 
January ]_^ 2000. or the date on which 
the unit commences operation. 

(B) For any facility with a unit under Part 
('b)(3)(B) of Rule .0401. the 
designated representative shall submit 



939 



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September 1, 1993 



PROPOSED RULES 



^ 



i3i 



a complete permit application 

governing such unit to the Director at 

least 24 months before the later of 

January 1, 2000, or the date on which 

the unit begins to serve a generator 

with a nameplate capacity greater than 

25 MWe. 

Acid Rain Compliance Option 

Deadlines. The deadlines for a pplying 

for approval of any acid rain 

compliance options shall be the 

deadlines specified in the relevant 

section of 40 CFR Part 72, Subpart D 

and in Section 407 of the federal Clean 

Air Act and regulations implementing 

section 407 of the federal Clean Air 

Act. 



\ 



(c) Duty to Reapply. The designated 
representative shall submit a complete permit 
application for each facility with an affected unit at 
least nine months prior to the expiration of an 
existing permit governing the unit during Phase II. 

(d) Four copies of all permit applications shall 
be submitted to the Director. 

(e) Permit Issuance Deadline. 

[1} On or before December 31. 1997, the 
Director shall issue a permit for Phase 
II to each affected facility in the State 
as set forth in 40 CFR 72.73(a); 
provided that the designated 
representative for the facility submitted 
a timely and complete permit 
application. Each permit issued in 
accordance with this Rule shall have a 
term of five years commencing on its 
effective date. Each permit shall take 
effect by the later of January 1^ 2000, 
or, where the permit governs a unit 
under Subparagraph (b)(3) of Rule 
.0401 of this Section, the deadline for 
monitor certification under 40 CFR Part 
75, 

(2) Nitrogen Oxides. Not later than January 
L, 1999. the Director shall reopen the 
permit to add the Acid Rain Program 
nitrogen oxides requirements. Such 
reopening shall not affect the term of 
the acid rain portion of a construction 
and operation permit. 

(3) Grandfathering of Phase II Units. 
Pursuant to the Federal Register, vol. 
57, no. 228, g_^ 55634, units that meet 
the following Phase 1 nitrogen oxides 
emission limitations before 1997: 

(A) 0.45 Ib/mmBtu for tangentially fired 



boilers: 
(B) 0.50 Ib/mmBtu for dry bottom wall- 
fired boilers: 
shall be exempted from any revision in 
emission limitations pursuant to Section 
407(bH2). 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8): 143-215. 108. 

.0406 REQUIREMENTS FOR PERMIT 
APPLICATIONS 

A complete permit application shall contain the 
following elements in a format to be specified by 
the Administrator: 

(1) identification of the affected facility for 
which the permit application is submitted: 

(2) identification of each unit at the facility 
for which the permit application is 
submitted: 

(3) a complete compliance plan for each unit, 
in accordance with 40 CFR Part 72, 
Subpart D: 

(4) the standard requirements under 40 CFR 
Part 72.9: and 

(5) if the permit a pplication is for Phase II 
and the unit is a new unit, the date that 
the unit has commenced or will 
commence operation and the deadline for 
monitor certification. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8); 143-215. 108. 

.0407 PERMIT APPLICATION SHIELD AND 
BINDING EFFECT OF PERMIT 
APPLICATION 

(a) Once a designated representative submits a 
timely and complete permit application, the owner 
or operator shall be deemed in compliance with the 
requirement to have a permit under 40 CFR 
72.9(a) and Paragraph (a) of Rule .0405 of this 
Section: provided that any delay in issuing a 
permit is not caused by the failure of the 
designated representative to submit in a complete 
and timely fashion su pplemental information, as 
required by the Director, necessary to issue a 
permit. 

(b) Prior to tlie earlier of the date on which a 
permit is issued subject to administrative appeal or 
judicial review, an affected unit governed by and 
operated in accordance with the terms and 
requirements of a timely and complete permit 
application shall be deemed to be operating in 
compliance with the Acid Rain Program and this 



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940 



PROPOSED RULES 



Section. 

(c) A complete permit application shall be 
binding on the ov.'ners and operators of the 
affected facility and the affected units covered by 
the permit application and shall be enforceable as 
a permit from the date of submission of the 
complete permit application until the final issuance 
or denial of a permit covering the units and subject 
to administrative appeal or judicial review. 

Siururory- Authority G.S. 143-215. 3(a)(l ): 143- 
215.107(a)(8): 143-215.108. 

.0408 COMPLIANCE PLANS 

For each affected unit included in a permit 
application, a complete compliance plan shall 
follow the requirements under 40 CFR 72.40 
where "permitting authority" is replaced with 
"Director." 

Statutory- Authority G.S. 143-215. 3(a)(l ); 143- 
215. 107(a)(8): 143-215. 108. 

.0409 PHASE II REPOWERING 
EXTENSIONS 

The procedures required for a repowering exten- 
sion shall follow the requirements contained in 40 
CFR 72.44 where "permitting authority" is re- 
placed v.'ith "Director". 

Statutory Authority G.S. 143-215. 3(a)(l ): 143- 
215.107(a)(8): 143-215.108. 

.0410 PER.\nT CONTENTS 

Each permit (including any draft or proposed 
permit) shall contain the following elements: 






all elements required for a complete 
permit application under Rule .0406. as 
approved or modified by the Director; 
the applicable acid rain emissions limita- 
tion for sulfur dioxide; and 
the applicable acid rain emissions limita- 
tion for nitrogen oxides. 



Statutory Authority G.S. 143-215. 3(a)(l ): 143- 
215.107(a)(8): 143-215.108. 

.0411 STANT)ARD REQLIREMENTS 

(a) The standard requirements set forth in 
Paragraphs (b) through iij of this Rule shall be 
binding on all owners and operators (including the 
designated representative) of the affected facility 
and affected units at the facility. 

(b) Permit Requirements. The owners or opera- 
tors of each affected facility and each affected unit 



at the facility shall: 

(1) submit a complete permit application 
(including a compliance plan) under this 
Section in accordance with the dead- 
lines specified in Rule .0405; 
£2} submit in a timely manner any supple- 
mental information that the Director 
determines is necessary In order to 
review a permit application and issue or 
deny a permit; 

(3) operate the unit in compliance with a 
complete permit application or a super- 
seding permit issued by the Director; 
and 

(4) have a permit. 

(c) Monitoring Requirements. 

(1) The ov.'ners and operators of each 
facility and each affected unit at the 
facility shall comply with all applicable 
monitoring requirements of 40 CFR 
Part 75 and Section 407 of the federal 
Clean Air Act and rules implementing 
Section 407 of the federal Clean Air 
Act. 

(2) The emissions measurements recorded 
and reported in accordance with 40 
CFR Part 75 and Section 407 of the 
federal Clean Air Act and rules imple- 
menting Section 407 of the federal 
Clean Air Act shall be used to deter- 
mine compliance by the unit v.ith the 
acid rain emissions limitations and 
emissions reduction requirements for 
sulfur dioxide and nitrogen oxides 
requirements under the Acid Rain 
Program. 

liJ Ihe requirements of 40 CFR Part 75 
and regulations implementing Section 
407 of the federal Clean Air Act shall 
not affect the responsibility of the ov.'n- 
ers and operators to monitor emissions 
of other pollutants or other emissions 
characteristics at the unit under other 
applicable requirements of the Act and 
other provisions of the operating permit 
for the facility. 

(d) Sulfur Dioxide Requirements. 

(1 ) The ov.'ners and operators of each 
facility and each affected unit at the 
facility shall: 
(A) hold allowances, as of the allowance 
transfer deadline, in the unit's compli- 
ance subaccount (after deductions 
under 40 CFR 73.34(c)) not less than 
the total annual emissions of sulfur 



941 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



m 



121 



O) 



14} 



15) 



dioxide for the previous calendar year 
from the unit; and 

comply with the applicable acid rain 
emissions limitations for sulfur diox- 
ide. 
Each ton of sulfur dioxide emitted in 
excess of the acid rain emissions limita- 
tions for sulfur dioxide shall constitute 
a separate violation of the federal Clean 
Air Act. 

An affected unit shall be subject to the 

requirements under Subparagraph (d)(n 

of this Rule as follows: 

(A) starting January \_^ 2000, an affected 

unit under Subparagraph (li)(l) or (2) 

of Rule .0401; 

starting on the later of January \_^ 

2000, or the deadline for monitor 

certification under 40 CFR Part 75. 

an affected unit under Subparagraph 

(b)(3) of Rule .0401. 

Allowances shall be held in. deducted 

from, or transferred among Allowance 

Tracking System accounts in 

accordance with the Acid Rain 

Program. 

An allowance shall not be deducted, in 
order to comply with the requirements 
under Part (d)(1)(A) of this Rule, prior 
to the calendar year for which the 
allowance was allocated. 



im 



£6} 



An allowance allocated by 
Administrator under the Acid 



the 
Rain 



Program is a limited authorization to 

emit sulfur dioxide in accordance with 

the Acid Rain Program. No provision 

of the Acid Rain Program, the permit 

a pplication, the permit, or the permit 

under 40 CFR Part 72.7 and Part 72.8 

and no provision of law shall be 

construed to limit the authority of the 

United States to terminate or limit such 

authorization. 

(7) An allowance allocated by the 

Administrator under the Acid Rain 

Program does not constitute a property 

right. 

(e) Nitrogen Oxides Requirements. TTie owners 

and operators of the facility and each affected unit 

at the facility shall comply with the applicable acid 

rain emissions limitation established by rules 

implementing Section 407 of the federal Clean Air 

Act, as modified by a permit a pplication and a 

permit in accordance with the requirements of the 

Acid Rain Program. 



(f) Excess Emissions Requirements. The owners 
and operators of an affected unit that has excess 
emissions for sulfur dioxide or nitrogen oxides in 
any calendar year shall: 

(1) pay without demand the penalty 
required, and pay upon demand the 
interest on that penalty, as required by 
40 CFR Part 77. 

(2) submit a proposed offset plan and 
comply with the terms of an approved 
offset plan, as required by 40 CFR Part 
77, 

(g) Recordkeeping and Reporting Requirements. 
(1) Unless otherwise provided, the owners 

and operators of the facility and each 
affected unit at the facility shall keep on 
site at the facility each of the following 
documents for a period of five years 
from the date the document is created; 
this period may be extended for cause. 



LM 



£B} 



iQ 



(D) 



ill 



at any time prior to the end of five 
years, in writing by the Administrator 
or Director: 
the certificate of representation for the 
designated representative for the 
facility and each affected unit at the 
facility and all documents that 
demonstrate the truth of the 
statements in the certificate of 
representation. ]n accordance with 40 
CFR Part 72.24; provided that the 
certificates and documents shall be 
retained on site at the facility beyond 
such five-year period until such 
documents are superseded because of 
the submission of a new certificate of 
representation changing the designated 
representative. 

all emissions monitoring information. 
in accordance with 40 CFR Part 
75.50(a). 

copies of all reports, compliance 
certifications, and other submissions 
and all records under the Acid Rain 
Program. 

copies of all documents used to 

complete a permit application and any 

other submission under the Acid Rain 

Program or to demonstrate 

compliance with the requirements of 

the Acid Rain Program. 

The designated representative shall 

submit the reports and compliance 

certifications required under the Acid 

Rain Program, including those under 40 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



942 



PROPOSED RULES 



CFR Part 72. Subpart L and 40 CFR 
Part 75. 
{h] Liability. 

(1) Any person who knowingly violates any 
requirement or prohibition of the Acid 
Rain Program, a complete permit 
application, a permit, or a written 
exemption under Rule .0403 or of 
.0404 of this Section, including any 
requirement for the payment of any 
penalty owed to the United States, shall 
be subject to enforcement pursuant to 
G.S. 143-215. 114A. 

(2) Any person who knowingly makes a 
false, material statement in any record, 
submission, or report under the Acid 
Rain Program shall be subject to 
criminal enforcement pursuant to G.S. 
143-215. 114A. 

(3) No permit revision shall excuse any 
violation of the requirements of the 
Acid Rain Program that occurs prior to 
the date that the revision takes effect. 

(4) Each affected facility and each affected 
unit shall meet the requirements of the 
Acid Rain Program. 

(5) Any provision of the Acid Rain 
Program that applies to an affected 
facility shall also apply to the owners 
and operators (including the designated 
representative) of such facility and of 
the affected units at the facility. 

(6) Any provision of the Acid Rain 
Program that applies to an affected unit 
shall also apply to the owners and 
operators (including the designated 
representative) of such unit. Except as 
provided under Rule .0409 of this 
Section, and Sections 407 of the federal 
Clean Air Act, and rules implementing 
Section 407 of the federal Clean Air 
Act, and except with regard to the 
requirements applicable to units with a 
common stack under 40 CFR Part 75 
(including 40 CFR Parts 75.16. 75.17. 
and 75. 18). the owners and operators 
and the designated representative of one 
affected unit shall not be liable for any 
violation by any other affected unit of 
which they are not owners or operators 
and that is at the same facility unless 
they are owners or operators of that 
facility. 

(7) Any violation of a provision of 40 CFR 
Parts 72, 73, 75, 77, and 78, or rules 



implementing Sections 407 of the 

federal Clean Air Act by an affected 

unit, or by an owner or operator or 

designated representative of such unit. 

shall be a separate violation. 

£i} Effect on Other Authorities. No provision of 

the Acid Rain Program, a permit application, a 

permit, or a written exemption under Rule .0403 

and .0404 of this Section shall be construed as: 

(1 ) except as expressly provided in Title 
IV. exempting or excluding the owners 
and operators of an affected facility or 
affected unit from compliance with any 
other provision of the federal Clean Air 
Act, including the provisions of Title I 
of the federal Clean Air Act relating to 
applicable national ambient air quality 
standards or state implementation plans. 

(2) limiting the number of allowances a 
unit can hold; provided, that the 
number of allowances held by the unit 
shall not affect the facility's obligation 
to comply with any other provisions of 
the federal Clean Air Act or Subchapter 
2D of Title 15A. 

(3) requiring a change of any kind in any 
State law regulating electric utility rates 
and charges, affecting any State law 
regarding such State regulation, or 
limiting such State rule, including any 
prudence review requirements under 
such State law. 

(4) modifying the Federal Power Act or 
affecting the authority of the Federal 
Energy Regulatory Commission under 
the Federal Power Act. 

(5) interfering with or impairing any 
program for competitive bidding for 
power supply in a State in which such 
program is established. 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215.107(a)(8); 143-215.65; 143-215.66; 143- 
215. 108. 

.0412 PERMIT SfflELD 

Each affected unit operated in accordance with 
the permit that governs the unit and that was 
issued in compliance with Title IV. as provided in 
this Part. 40 CFR Parts 73. 75. 77. and 78. and 
the rules implementing Sections 407 of the federal 
Clean Air Act, shall be deemed to be operating in 
compliance with the Acid Rain Program, except as 
provided in Subparagraph (h)(6) of Rule .041 1 of 
this Section. 



943 



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NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8); 143-215. 108. 

.0413 PERMIT REVISIONS GENERALLY 

(a) TTie permit revision procedures shall govern 
revisions to any acid rain portion of any 
construction and operation permit. 

(b) The permit revision procedures shall 
supersede the permit revision procedures specified 
in Section .0500 of this Subchapter with regard to 
revision of any Acid Rain Program permit 
provision. 

(c) A permit revision may be submitted for 
approval at any time. No permit revision shall 
affect the term of the permit to be revised. No 
permit revision shall excuse any violation of an 
Acid Rain Program requirement that occurred 
prior to the effective date of the revision. 

(d) Except for minor permit modifications or 
administrative amendments, the terms of the 
permit shall apply while the permit revision is 
pending. 

(e) Any determination by the Director or a State 
court modifying or voiding any permit provision 
shall be subject to review by the Administrator in 
accordance with 40 CFR 70.8(c). unless the 
determination or interpretation is an administrative 
amendment approved in accordance with Rule 
.0416 of this Section. 

(f) The standard requirements of 40 CFR Part 
72.9 shall not be modified or voided by a permit 
revision. 

(g) Any permit revision involving incorporation 
of a compliance option that was not submitted for 
approval and comment during the permit issuance 
process, or involving a change in a compliance 
option that was previously submitted, shall meet 
the requirements for applying for such compliance 
option under Rule .0409 of this Section and 
Section 407 of the federal Clean Air Act and rules 
implementing Section 407 of the federal Clean Air 
Act. 

(h) For permit revisions not described in Rules 
.0414 and .0415 of this Section, the Director may, 
at his discretion, determine which of these Rules is 
applicable. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. W7(a)(8); 143-215. 108. 

.0414 PERMIT MODIFICATIONS 

(a) TTie following permit revisions shall follow 
the permit modification procedures: 

(1) relaxation of an excess emission offset 
requirement after a pproval of the offset 



plan by the Administrator, 

(2) incorporation of a final nitrogen oxides 
alternative emission limitation following 
a demonstration period, or 

(3) determination of whether efforts to 
design, construct, and test repowering 
technology under a repowering 
extension plan were in good faith and 
whether such repowering technology 
was properly constructed and tested 
under 40 CFR 72.44(g)(l)(i) and (2). 

(b) TTie following permit revisions shall follow 
either the permit modification procedures or the 
fast-track modification procedures under Rule 
.0415 of this Section: 

(1) incorporation of a compliance option 
that the designated representative did 
not submit for approval and comment 
during the permit issuance process; 

(2) addition of a nitrogen oxides alternative 
emissions limitation demonstration 
period or a nitrogen oxides averaging 
plan to a permit; or 

(3) changes in a repowering plan, nitrogen 
oxides averaging plan, nitrogen oxides 
alternative emissions limitation 
demonstration period, or nitrogen 
oxides compliance deadline extension. 

(c) Permit modifications shall follow the 
requirements of Rules .0410 and .0412 of this 
Section and Section .0500 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8); 143-215. 108. 

.0415 FAST-TRACK MODIFICATIONS 

All fast-track modifications applicable to sources 
subject to the acid rain portion of this Section shall 
follow the procedures given in 40 CFR 72.80 
where "permitting authority" should be replaced 
with "Director". 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8); 143-215. 108. 

.0416 ADMINISTRATIVE PERMIT 
AMENDMENT 

(a) The following revisions to the acid rain 

portion of the permit shall follow the 

administrative permit amendment procedures are: 

(1) activation of a compliance option 

conditionally approved by the Director, 

provided that all requirements for 

activation under 40 CFR Part 72, 

Subpart D. are met; 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



944 



PROPOSED RULES 



(2) changes in the designated representative 
or alternative designated representative, 
provided that a new certificate of 
representation is submitted; 

(3) correction of typographical errors; 

(4) changes in names, addresses, or 
telephone or facsimile numbers; 

(5) changes in the owners or operators, 
provided that a new certificate of 
representation is submitted within 30 
days; 

(6) termination of a compliance option in 
the permit, provided that this procedure 
shall not be used to terminate a 
repowering plan after December 31. 
1999. 

(b) Administrative amendments shall follow the 
procedures set forth under Section .0500 of this 
Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8): 143-215. 108. 

.0417 AUTOMATIC PERMIT AMEIVDMENT 

The following permit revisions shall be deemed 
to amend automatically, and become a part of. the 
affected unit's permit by operation of law without 
any further review: 

(1 ) upon recordation by the Administrator 
under 40 CFR Part 73 aU allowance 
allocations to. transfers to, and 
deductions from an affected unit's 
Allowance Tracking System account; and 

(2) incorporation of an offset plan that has 
been approved by the Administrator 
under 40 CFR Part 77. 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215. 107(a)(8): 143-215. 108. 

.0418 PERJVflT REOPENINGS 

(a) As provided in Section .0500 of this 
Subchapter, the Director shall reopen a permit for 
cause, including whenever additional requirements 
become applicable to any affected unit governed 
by the permit. 

(b) Upon reopening a permit for cause, the 
Director shall issue a draft permit changing the 
pro\isions. or adding the requirements, for which 
the reopening \\as necessary. 

(c) As necessary, the Director shall reopen a 
permit to incorporate nitrogen oxides 
requirements, consistent with Section 407 of the 
federal Clean Air Act and rules implementing 
Section 407 of the federal Clean Air Act. 



(d) Any reopening of a permit shall not affect 
the term of the permit. 

Statutory^ Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(8): 143-215. 108. 

SECTION .0500 - TITLE V PROCEDURES 

.0501 PURPOSE OF SECTION AND 

REQUIREMENT FOR A PERMIT 

(a) The purpose of this Section is to establish an 
air quality permitting program as required under 
Title V and 40 CFR Part 70. 

(b) The procedures and requirements under this 
Section do not apply until EPA approves this 
Section. 

(c) With the exception in Paragraph (d) of this 
Rule, the owner or operator of an existing facility, 
new facility, or modification of an existing facility 
(except for minor modifications under Rule .0515 
of this Section), including significant modifications 
that would not contravene or conflict with a 
condition in the existing permit, subject to the 
requirements of this Section shall not begin 
construction without first obtaining: 

(1) a construction and operation permit 
following the procedures under this 
Section (except for Rule .0504). or 

(2) a construction and operation permit 
following the procedures under Rule 
■0504 and filing an application within 
12 months after commencing operation 
to modify the construction and 
operation permit to meet the 
requirements of this Section. 

(d) If the permittee proposes to make a 
significant modification under Rule .0516 of this 
Section that would contravene or conflict with a 
condition in the existing permit, he shall not begin 
construction or make the modification until he has 
obtained: 

( 1 ) a construction and operation permit 
following the procedures under this 
Section (except for Rule .0504 of this 
Section); or 

(2) a construction and operation permit 
following the procedures under Rule 
.0504 of this Section and, before 
beginning operation, files an application 
and obtains a permit modifying the 
construction and operation permit to 
meet the requirements of this Section 
(except for Rule .0504 of this Section). 

(e) All facilities subject to this Section must 
have a permit to operate that assures compliance 



945 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



with 40 CFR Part 70 and al] applicable 
requirements. 

(f) Except as allowed under Rule .0515 (minor 
modifications) of this Section, no facility subject to 
the requirements of this Section may operate after 
the time that it is required to submit a timely and 
complete application under this Section except in 
compliance with a permit issued under this 
Section. This Paragraph does not apply to initial 
submittals under Rule .0506 of this Section or to 
permit renewals under Rule .0513 of this Section. 

ig) if the conditions of Rule .0512(b) 
(application shield) of this Section are met, the 
facility's failure to have a permit under this 
Section shall not be a violation. 

£hj The owner or operator of a facility or source 
subject to the requirements of this Section may 
also be subject to the toxic air pollutant procedures 
under 15A NCAC 2H .0610. 

(i) The owner or operator of an affected unit 
subject to the acid rain program requirements of 
Title IV is also subject to the procedures under 
Section .0400 of this Subchapter. 

£[] The owner or operator of a facility subject to 
the requirements of this Section shall pay permit 
fees in accordance with the requirements of 
Section .0200 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0502 APPLICABILITY 

(a) Except as provided in Paragraph (h) of this 
Rule, the following facilities are required to obtain 
a permit under this Section: 

(1) major facilities; 

(2) facilities with a source subject to 15A 
NCAC 2D .0524 or 40 CFR Part 60, 
except new residential wood heaters; 
facilities with a source subject to 15A 
NCAC 2D .0525 or 40 CFR Part 61, 
except asbestos demolition and 
renovation activities; 
facilities with a source subject to 40 
CFR Part 63; 
facilities to which 15A NCAC 2D 



01 

14} 
(51 

16} 



■0517(2). .0528. .0529. or .0534 

applies; or 

facilities with a source subject to Title 

IV or 40 CFR Part 72. 
(b) TTiis Section does not apply to minor 
facilities with sources subject to requirements of 
15A NCAC 2D .0524 or .0525 or 40 CFR Part 60 
or 6i until EPA requires these facilities to have a 
permit under 40 CFR Part 70. 



(c) Research and development operations located 
at manufacturing facilities shall be considered as a 
separate and discrete facility for the purposes of 
determining whether such operations constitute a 
major facility subject to the permitting 
requirements of this Section. Except where such 
research and development operations by 
themselves constitute a major facility, they shall be 
exempted from the permitting requirements of this 
Section. 

(d) Once a facility is subject to this Section 
because of emissions of one pollutant, the owner 
or operator of that facility shall submit an 
application that includes all sources of all regulated 
air pollutants located at the facility. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0503 DEFINITIONS 

For the purposes of this Section, the definitions 

in G.S. 143-212 and 143-213 and the following 

definitions apply: 

(1) "Affected States" means all states or local 

air pollution control agencies whose areas 

of jurisdiction are: 

(a) contiguous to North Carolina and 
located less than D = Q/12.5 miles from 
the facility, where: 

ti) Q ^ emissions of the pollutant 

emitted at the highest permitted rate 

in tons per year, and 
(ii) D ^ distance from the facility to the 

contiguous state or local air pollution 

control agency in miles 
unless the applicant can demonstrate to the 
satisfaction of the Director that the 
ambient impact in the contiguous states or 
local air pollution control agencies is less 
than the incremental ambient levels in 15 A 
NCAC 2D .0532 (c)(5); or 

(b) within 50 miles of the permitted 
facility. 

(2} "Applicable requirements" means: 

(a) any requirement of this Section; 

(b) any requirement of Subchapter 2D of 
this Chapter contained in the federally- 
approved State Implementation Plan or 
has been submitted to EPA for approval 
as part of the federally-approved State 
Implementation Plan; 

(c) any term or condition of a construction 
permit for a facility covered under 15A 
NCAC 2D .0530. .0531. or .0532; 

(d) any standard or other requirement 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



946 



PROPOSED RULES 



m 

ihl 

m 



under Section 1 1 1 or 1 12 of the federal 
Clean Air Act, but not including the 
contents of any risk management plan 
required under Section 1 12 of the 
federal Clean Air Act; 
any standard or other 



under Title IV; 



any 



standard or other 



requirement 

requirement 
incineration 



governing solid waste 
under Section 129 of the federal Clean 
Air Act; 

any standard or other requirement 
under Section 183(e), 183(f), or 328 of 
the federal Clean Air Act; 
any standard or requirement under Title 
VI of the federal Clean Air Act unless 
a permit for such requirement is not 
required under this Section; 
any requirement under Section 504(1j) 
or 1 14(a)(3) of the federal Clean Air 
Act; or 

any national ambient air quality stan- 
dard or increment or visibility require- 
ment under Part C of Title 1 of the 
federal Clean Air Act, but only as it 
would apply to temporary sources 
permitted pursuant to 504(e) of the 
federal Clean Air Act. 

(3) "Complete application" means an applica- 
tion that provides all information 
described under 40 CFR 70.5(c) and such 
other information that is necessary to 
determine compliance with all applicable 
requirements. 

(4) "Draft permit" means the version of a 
permit that the Division offers public 
participation under Rule .0521 of this 
Section or affected State review under 
Rule .0522 of this Section. 

(5) "Emissions allowable under the permit" 
means a federally enforceable permit 
term or condition determined at issuance 
to be an applicable requirement that 
establishes an emissions limit (including 
a work practice standard) or a federally 
enforceable emissions cap that the facility 
has assumed to a\oid an applicable 
requirement to which the facility would 
otherwise be subject. 

(6) "Final permit" means the version of a 
permit that the Director issues that has 
completed all review procedures required 
under this Section if the permittee does 
not file a petition under Article 3 of G.S. 
150B. 



(7) "Fugitive emissions" means those 
emissions which could not reasonably 
pass through a stack, chimney, vent, or 
other functionally-equivalent opening. 
"Major facility" means a major source as 
defined under 40 CFR 70.2. 



18] 
£9] 
(10) 
liii 

(12) 



(13) 



14) 



15) 



16) 



(17) 



(18) 



"Minor facility" means any facility that is 
not a major facility. 

"Operation" means the utilization of 
equipment that emits regulated pollutants. 
"Permit renewal" means the process by 
which a permit is reissued at the end of 
its term. 

means any permit 



"Permit revision" 



modification under Rule .0515, .0516, or 
.0517 of this Section or any 
administrative permit amendment under 
Rule .0514 of this Section. 
"Proposed permit" means the version of 
a permit that the Director proposes to 
issue and forwards to EPA for review 
under Rule .0522 of this Section. 



"Relevant source" means only those 



sources that are subject to applicable 
requirements. 

"Responsible official" means a 
responsible official as defined under 40 
CFR 70.2. 

"Section 5 02(b)( 10) changes" means 
changes that contravene an express 
permit term or condition. Such changes 
do not include changes that would violate 
applicable requirements or contravene 
federally enforceable permit terms or 
conditions that are monitoring (including 
test methods), recordkeeping, reporting. 
or compliance certification requirements. 
"Synthetic facility" is a facility that 
would otherwise be required to follow the 
procedures of this Section except that one 
or more federally enforceable operational 
limitations in the permit restrict the 
potential to emit by limiting hours or 
operation, the type or amount of material 
combusted, stored, or processed, or 
similar parameters. Emission limitations 
produced by pollutant control equipment 
described in the permit do not constitute 
operational limitations in the permit for 
the purpose of this definition. 
"Timely" means: 
for initial permit submittals under Rule 
■0506 of this Section, before the end of 
the time period specified for submittal 
of an application for the respective 



947 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



Standard Industrial Classification: 
(h) for a new facility, one year after com- 
mencing operation; 

(c) for renewal of a permit previously 
issued under this Section, nine months 
before the expiration of that permit: 

(d) for a minor modification under Rule 
■0515 of this Section, before commenc- 
ing the modification: 

(e") for a significant modification under 
Rule .0516 of this Section where the 
change would not contravene or conflict 
with a condition in the existing permit, 
12 months after commencing operation: 

(f) for reopening for cause under Rule 
■ 0517 of this Section, 30 days after 
request for additional information by 
the Director; or 

{g} for requests for additional information, 
60 days after request for additional 
information by the Director. 

Statutory Authority G. S. 143-215. 3(a)(1); 143-212; 
143-213. 

.0504 OPTION FOR OBTAESfEVG 

CONSTRUCTION AND OPERATION 
PERMIT 

{a} Pursuant to Rule .0501(c) or (d)(2) of this 
Section, the owner or operator of a new or modi- 
fied facility subject to the requirements of this 
Section that chooses to obtain a construction and 
operation permit before the facility must obtain a 
permit under this Section may file an application 
under Section .0300 of this Subchapter ■ However, 
the exemptions contained in Rule ^0302 of this 
Subchapter shall not apply to such applications ■ 

(b) The applicant shall state in his permit appli- 
cation that he wishes to follow the procedures 
under this Rule. 

(c) If the option allowed under Rule .0501(c)(n 
of this Section is used, then the public participation 
procedures for prevention of significant deteriora- 
tion under 15A NCAC 2D .0530 and new source 
review for nonattainment areas under 15A NCAC 
2D .0531 do not apply. If the option allowed 
under Rule .0501(c)(2) of this Section is used, then 
the public participation procedures in this Section 
and: 

UQ under 15A NCAC 2D .0530 for pre- 
vention of significant deterioration, or 

(2} under 15A NCAC 2D .0531 for new 
source review for nonattainment areas 
shall apply. 

(d) If the procedures under Section .03(X) of this 



Subchapter are followed, the permittee shall have 
one year from the date of beginning operation of 
the facility or source to file an amended applica- 
tion following the procedures of this Section. The 
Director shall place a condition \n the permit 
stating this requirement. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0505 APPLICATION SUBMITTAL 
CONTENT 

If an applicant does not submit, at a minimum, 
the following information with his application 
package, the application package shall be returned: 

(1) for new facilities and modified facilities: 

i£l 
Id] 



£2} 



13} 



an application fee as required under 
Section .0200 of this Subchapter, 
a consistency determination as required 
under Rule ■0507(d)(n of this Section, 
a financial qualification or substantial 
compliance statement if required, and 
a pplications as required under Rule 
.0507(a) and (e) of this Section and 
signed as required by Rule .0520 of this 
Section; 
for renewals: applications as required 
under Rule .0507(a) and (e) of this Sec- 
tion and signed as required by Rule 
.0520 of this Section; 



14} 



M 



im 



15} 



for a name change: three copies of a 
letter signed by the a responsible official 
in accordance with Rule .0520 indicating 
the current facility name, the date on 
which the name change shall occur, and 
the new facility name; 
for an ownership change: an application 
fee as required under Section .0200 of 
this Subchapter, and: 
three copies of a letter sent by each the 
seller and the buyer indicating the 
change, or 

three copies of a letter sent by either 

bearing the signature of both the seller 

and buyer, and 

containing a written agreement with a 

specific date for the transfer of permit 

responsibility, coverage. and liability 

between the current and new permittee; 

and 

for corrections of typographical errors; 
changes name, address, or telephone 
number of any individual identified in the 
permit; changes in test dates or construc- 
tion dates; or similar minor changes: 



8:11 



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September 1, 1993 



948 



PROPOSED RULES 



three copies of a letter signed by a re- 
sponsible official in accordance with Rule 
■0520 of this Section describing the pro- 
posed change and explaining the need for 
the proposed change. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0506 INITIAL PERMIT APPLICATION 
SUBMITTAL 

(a) The owner or operator of any facility re- 
quired to have a permit under this Section shall 
file a permit application with the Director as 
follows: 

(1) Facilities with a Standard Industrial 
Classification code of: 

(A) 0000 through 2499, or 
IB) 3400 through 9999 (except 491 1), 
shall file a permit application between the 
first day and the 60th day following ap- 
proval of this Section by EPA : 

(2) Facilities with a Standard Industrial 
Classification code of: 

(A) 2500 through 2599. or 

£8} 3200 through 3299. 
shall file a permit application between the 
90th day and the 150th day following 
approval of this Section by EPA; or 

(3) Facilities with a Standard Industrial 
Classification code of: 

(A) 2600 through 3199. 
IB] 3300 through 3399. or 
iC) 4911. 
shall file a permit application between the 
180th day and 240th day following ap- 
proval of this Section by EPA. - 
Facilities having more than one Standard Industrial 
Classification code shall file a permit application 
when the first Standard Industrial Classification is 
called for the facility. 

(b) TTie Director may allow the owner or opera- 
tor of a facility additional time to submit the 
permit application required under Paragraph (a) of 
this Rule provided that: 

(1) The owner or operator of the facility 
shows good cause why additional time 
is needed, and 

(2) The application is submitted within 12 
months following approval of this Sec- 
tion by EPA. 

(c) If the owner or operator of a facility submits 
the permit application required under Paragraph (a) 
of this Rule before he is required to submit the 
application under Paragraph (a) of this Rule, the 



Director shall not consider the application to have 
been submitted for the purposes of completeness 
review until the first day of the scheduled submit- 
tal under Paragraph (a) of this Rule. 

(d) The Director shall notify in writing currently 
permitted facilities that may be subject to this 
Section of the date that EPA approves this Section. 

(e) With the exception of Paragraph [f} of this 
Rule, the Director shall take final action annually 
on at least one-third of the permit applications 
submitted under this Rule so that within three 
years after EPA approves this Section final action 
has been taken on all permit applications submitted 
under this Rule. 

(f) The Director shall take final action on any 
completed permit application containing an early 
reduction demonstration under Section 112(i)(5) of 
the federal Clean Air Act within nine months of 
receipt of the complete application. 

(g) The submittal of permit applications and the 
permitting of facilities subject to Title IV shall 
occur in accordance with the deadlines in Title IV 
and Section .0400 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0507 APPLICATION 

(a) Except for: 
(1) minor permit modifications covered 
under Rule .0515 of this Section, 



ill 
13) 



significant modifications covered under 
Rule .0516(c) of this Section, or 
permit applications submitted under 
Rule .0506 of this Section. 
the owner or operator of a source shall have one 
year from the date of beginning of operation of the 
source to file a complete application for a permit 
or permit revision. 

(b) The application shall include all the informa- 
tion described in 40 CFR 70.5(c). including 
insignificant activities exempted because of size or 
production rate under Rule .0102(b)(2). and the 
application form shall be certified by a responsible 
official for truth, accuracy, and completeness. 

(c) Application for a permit, permit revision, or 
permit renewal shall be made in accordance with 
Rule .0104 of this Subchapter on official forms of 
the Division and shall include plans and specifica- 
tions giving all necessary data and information as 
required by the application form. Whenever the 
information provided on these forms does not 
adequately describe the source or its air pollution 
abatement equipment, the Director may request 
that the applicant provide any other information 



949 



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September 1, 1993 



PROPOSED RULES 



that the Director considers necessary to evaluate 
the source and its air pollution abatement equip- 
ment. 

£d} Along with filing a complete application 
form, the applicant shall also file the following: 



m 






(21 



Ql 



for a new facility or an expansion of 
existing facility, a consistency determi- 
nation in accordance with G.S. 143- 
215.108(f) that: 
bears the date of receipt entered by 
the clerk of the local government, or 
consists of a letter from the local 
government indicating that all zoning 
or subdivision ordinances are met by 
the facility; 
for a new facility or modification of an 
existing facility, a source reduction and 
recycling description in accordance with 
G.S. 143-215. 108(g); and 
if required by the Director, information 
showing that: 
The applicant is financially qualified 
to carry out the permitted activities. 
or 

The applicant has substantially com- 
plied with the air quality and emis- 
sions standards applicable to the 
permitted activities, 
(e) The applicant shall submit copies of the 
application package as follows: 

for sources subject to the requirements 
of I5A NCAC 2D .0530. .0531. or 
.12(K). six copies plus one additional 
copy for each affected state that the 
Director has to notify; 
for sources not subject to the require- 
ments of 15A NCAC 2D .0530. .0531. 
or . 12(X). four copies plus one addition- 
al copy for each affected state that the 
Director has to notify. 
The Director may at any time during the applica- 



lA] 



IB) 



m 



Oi 



tion process request additional copies of the com- 
plete a pplication package from the applicant. 

(f) The Division shall review all applications 
within 60 days of receipt of the a pplication to 
determine whether the a pplication is complete or 
incomplete. The notification shall be a letter: 



stating that the application is deemed; 
stating that the application is incomplete 
and requesting additional information; 
or 

stating that the a pplication is incomplete 
and that the applicant needs to rewrite 
the application and resubmit it 
If the Division does not notify the a pplicant by 



m 

12} 



ill 



letter dated within 60 days of receipt of the appli- 
cation that the application is incomplete, the 
a pplication shall be deemed complete. A com- 
pleteness determination shall not prevent the 
Director from requesting additional information at 
a later date when such information is considered 
necessary to properly evaluate the source or its air 
pollution abatement equipment. A completeness 
determination shall not be necessary for minor 
modifications under Rule .0514 of this Section. 

(g) Any applicant who fails to submit any 
relevant facts or who has submitted incorrect 
information in a permit application shall, upon 
becoming aware of such failure or incorrect sub- 
mittal, promptly submit such supplementary facts 
or corrected information. In addition, an applicant 
shall provide additional information as necessary to 
address any requirements that become applicable to 
the source after the date he filed a complete app li- 
cation but prior to release of a draft permit. 

(h) The applicant shall submit the same number 
of copies of additional information as required for 
the a pplication package. 

(i) The submittal of a complete permit applica- 
tion shall not affect the requirement that any 
facility have a preconstruction permit under 15A 
NCAC 2D .0530. .0531. or .0532 or under Sec- 
tion .0400 of this Subchapter. 

(j) A non-refundable permit application process- 
ing fee shall accompany each application. The 
permit application processing fees are defined in 
Section .0200 of this Subchapter. Each permit or 
renewal application is incomplete until the permit 
a pplication processing fee is received. 

(k) TTie applicant shall keep on file one complete 
copy of the application package and any informa- 
tion submitted in su pport of the a pplication pack- 
age. 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215. 107(a)(10); 143-215. 108. 

.0508 PERMIT CONTENT 

(a) The permit shall specify and reference the 
origin and authority for each term or condition and 
shall identify any differences in form as compared 
to the applicable requirement on which the term or 
condition is based. 



(b) The permit shall specify emission limitations 
and standards, including operational requirements 
and limitations, that assure compliance with all 
a pplicable requirements at the time of permit 
issuance. 

(c) Where an applicable requirement of the 
federal Clean Air Act is more stringent than an 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



950 



PROPOSED RULES 



applicable requirement of rules promulgated 
pursuant to Title IV, both provisions shall be 
placed in the permit. The permit shall state that 
both provisions are enforceable by EPA. 

(d) The permit for sources using an alternative 
emission limit established under 15A NCAC 2D 
.0501(f) or JIA NCAC 2D .0952 shall contain 
provisions to ensure that any resulting emissions 
limit has been demonstrated to be quantifiable, 
accountable, enforceable, and based on replicable 
procedures. 

(e) TTie expiration date contained in the permit 
shall be for a Fixed term of Five years for sources 
covered under Title IV and for a term of no more 
than Five years from the date of issuance for all 
other sources including solid waste incineration 
units combusting municipal waste subject to stan- 
dards under Section 129(e) of the federal Clean 
Air Act. 

(f) The permit shall contain monitoring and 
related recordkeeping and reporting requirements 
as specified in 40 CFR 70.6(a)(3) and 70.6(c)(1) 
including conditions requiring: 

( 1 ) the permittee to retain records of all 
required monitoring data and supporting 
information for a period of at least five 
years from the date of the monitoring 
sample, measurement, report, or appli- 
cation; 

(2) the permittee to submit reports of any 
required monitoring at least every six 
months. The permittee shall submit 
reports: 

(A) on official forms obtained from the 
Division at the address in Rule .0104 
of this Subchapter, 

(B) in a manner as specified by a permit 
condition, or 

(C) on such other forms as approved by 
the Director; and 

(3) the permittee to report malfunctions, 
emergencies, and other upset conditions 
as prescribed in 15A NCAC 2D .0524. 
.0525, or .0535 and to report by the 
next business day deviations from per- 
mit requirements or any excess emis- 
sions not covered under 15A NCAC 2D 
.0524, .0525, or .0535. The Permittee 



shall report in writing to either the 
Director or Regional Supervisor all 
other deviations from permit require- 
ments not covered under 15A NCAC 
2D .0535 within two business days 
after becoming aware of the deviation. 
The permittee shall include the probable 



cause of such deviation and any correc- 
tive actions or preventive measures 
taken. All deviations from permit 
requirements shall be certified by a 
responsible official. 
Where appropriate, the Director may allow records 
to be maintained in computerized form. 

(g) If the facility is required to develop and 
register a risk management plan pursuant to Sec- 
tion 1 12(r) of the federal Clean Air Act, the permit 
need only specify that the owner or operator of the 
facility will comply with the requirement to regis- 
ter such a plan. The content of the risk manage- 
ment plan need not itself be incorporated as a 
permit term or condition. 

(h) The permit shall contain a condition prohib- 
iting emissions exceeding any allowances that a 
facility lawfully holds under Title IV. The permit 
shall not limit the number of allowances held by a 
permittee, but the permittee may not use allowanc- 
es as a defense to noncompliance with any other 
applicable requirement. 

ii) The permit shall contain a severability clause 
so that various permit requirements will continue 
to be valid in the event of a challenge to any other 
portion of the permit. 

£i) The permit shall state that noncompliance 
with any condition of the permit is grounds for 
enforcement action; for permit termination, revo- 
cation and reissuance, or modification; or for 
denial of a permit renewal application. 

(k) The permit shall state that the permittee may 
not use as a defense in an enforcement action that 
it would have been necessary to halt or reduce the 
permitted activity in order to maintain compliance 
with the conditions of the permit. 

(1) The permit shall state that the Director may 
modify, reopen, revoke and reissue, or terminate 
the permit for cause. The permit shall state that, 
except to the extent allowed for minor permit 
modifications under Rule .0515 of this Section, the 
filing of a request by the permittee for a permit 
revision, revocation and reissuance, or termina- 
tion, notification of planned changes, or anticipat- 
ed noncompliance does not stay any permit condi- 
tion. 

(m) TTie permit shall state that the permit does 
not convey any property rights of any sort, or any 
exclusive privileges. 

(n) The permit shall state that the permittee shall 
furnish to the Division, in a timely manner, any 
reasonable information that the Director may 
request in writing to determine whether cause 
exists for modifying, revoking and reissuing, or 
terminating the permit or to determine compliance 



951 



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NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



with the permit. The permit shall state that the 
permittee shall furnish the Division copies of 
records required to be kept by the permit when 
such copies are requested by the Director. 

(o) The permit shall contain a provision to 
ensure that the permittee pays fees required under 
Section .0200 of this Subchapter. 

(p) The permit shall state the terms and condi- 
tions for reasonably anticipated operating scenarios 
identified by the applicant in the application. 
These terms and conditions shall: 

(1) require the permittee, contemporane- 
ously with making a change from one 
operating scenario to another, to record 
in a log at the permitted facility a re- 
cord of the operating scenario under 
which it is operating; 

(2) extend the permit shield described in 
Rule .0512 of this Section to all terms 
and conditions under each such operat- 
ing scenario; and 

(3) ensure that each operating scenario 
meets all applicable requirements of 
Subchapter 2D of this Chapter and of 
this Section. 

(q) The permit shall identify which terms and 
conditions are enforceable by both EPA and the 
Division, which are enforceable by the Division 
only and by EPA only, which are enforceable 
under the federal Clean Air Act by citizens. 

(r) The permit shall state that the permittee shall 
allow personnel of the Division to: 

(1) enter the permittee's premises where 
the permitted facility is located or 
emissions-related activity is conducted, 
or where records are kept under the 
conditions of the permit; 
£2} have access to and copy, at reasonable 
times, any records that are required to 
be kept under the conditions of the 
permit; 

(3) inspect at reasonable times and using 
reasonable safety practices any source, 
equipment (including monitoring and 
air pollution control equipment), prac- 
tices, or operations regulated or re- 
quired under the permit; and 

(4) sample or monitor substances or param- 
eters, using reasonable safety practices, 
for the purpose of assuring compliance 
with the permit or applicable require- 
ments at reasonable times. 

(s) When a compliance schedule is required 
under 40 CFR 70.5(c)(8) or under a rule contained 
in Subchapter 2D of this Chapter, the permit shall 



contain the compliance schedule and shall state that 
the permittee shall submit at least semiannually, or 
more frequently if specified in the applicable 
requirement, a progress report. The progress 
report shall contain: 

(1) dates for achieving the activities, mile- 
stones, or compliance required in the 
compliance schedule, and dates when 
such activities, milestones, or compli- 
ance were achieved; and 

(2) an explanation of why any dates in the 
compliance schedule were not or will 
not be met, and any preventive or 
corrective measures adopted. 

(t} The permit shall contain requirements for 
compliance certification with the terms and condi- 
tions in the permit, including emissions limitations, 
standards, or work practices. The permit shall 
specify: 

(1) the frequency (not less than annually) 
of submissions of compliance certifica- 
tions; 

(2) a means for monitoring the compliance 
of the source with its emissions limita- 
tions, standards, and work practices; 

(3) a requirement that the compliance 
certification include: 

(A) the identification of each term or 
condition of the permit that is the 
basis of the certification; 

(B) the compliance status as shown by 
monitoring data and other information 
reasonably available to the permittee; 

(C) whether compliance was continuous 
or intermittent; 

(D) the method(s) used for determining 
the compliance status of the source, 
currently and over the reporting peri- 
od; and 

{E} such other facts as the permit may 
specify to determine the compliance 
status of the source; 

(4) that all compliance certifications be 
submitted to EPA as well as to the 
Division; and 

(5) such additional requirements as may be 
specified under Sections 1 14(a)(3) or 
504(b) of the federal Clean Air Act. 

(u) The permit shall contain a condition that 
authorizes the permittee to make Section 
502(b)(10) changes in accordance with Rule .0523 
of this Section. 

(v) The permit shall include all applicable 
requirements for all sources covered under the 
permit. 



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September 1, 1993 



952 



PROPOSED RULES 



(w) The permit shall specify the conditions 
under which the permit shall be reopened before 
the expiration of the permit. 

(x) If regulated, fugitive emissions shall be 
included in the permit in the same manner as stack 
emissions. 

(v) The permit shall contain a condition 
requiring annual reporting of actual emissions as 
required under Rule .0207 of this Subchapter. 

(z) The permit shall not include sources for 
which there are no applicable requirements. 

(aa) The permit shall not include insignificant 
activities or other activities that the applicant 
demonstrates to the satisfaction of the Director to 
be negligible in their air quality impacts. 

(bb) The permit may contain such other 
provisions as the Director considers appropriate. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.65; 143-215.66; 143-215. 107(a)(10); 143- 
215. 108. 

.0509 PERMITTING OF NUMEROUS 
SIMILAR FACILITIES 

(a) The Director may issue, after notice and 
opportunity for public participation provided in 
Rule .0514 of this Section, a permit to cover 
numerous similar facilities or sources. 

(b) The Director shall not issue a permit under 
this Rule unless the following conditions are meet: 

(1) No facility covered under the permit 
typically has actual emissions of more 
than 50 tons per year of particulates, 
sulfur dioxide, nitrogen oxides, or 
volatile organic compounds or five tons 
per year of lead; 

(2) There is no unique difference that 
would require special permit conditions 
for any individual facility; and 

(3) No unique analysis is required for any 
facility covered under the permit. 

(c) A permit issued under this Rule shall comply 
with all the requirements of this Section. 

(d) A permit issued under this Rule shall identi- 
fy criteria by which facilities or sources may 
qualify for the permit. To facilities or sources that 
qualify, the Director shall grant the terms and 
conditions of the permit. 

(e) The facility or source shall be subject to 
enforcement action for operating without a permit 
if the facility or source is later determined not to 
qualify for the terms and conditions of the permit 
issued under this Rule. 

(f) Sources subject to Title IV shall not be 
eligible for a permit issued under this Rule. 



(g) The owner or operator of a facility or source 
that qualifies for a permit issued under this Rule 
shall app ly for coverage under the terms of the 
permit issued under this Rule or shall apply for a 
regular permit under this Section. 

(h) The Division need not repeat the public 
participation procedures required under Rule .0514 
of this Section when it grants a request by a permit 
a pplicant to operate under a permit issued under 
this Rule. 

Statutory Authority G.S. 143-215. 3(a)(l ); 143- 
215. 107(a)(10); 143-215. 108. 

.0510 PERMITTING OF FACILITIES AT 
MULTIPLE TEMPORARY SITES 

(a) TTie Director may issue a single permit 
authorizing emissions from similar operations by 
the same facility owner or operator at multiple 
temporary sites. 

(b) In order for a facility to qualify for a multi- 
ple temporary site under this Rule, the operation 
must involve at least one change of site during the 
term of the permit. 

(c) Sources subject to Title IV shall not be 
eligible for a permit under this Section. 

(d) Permits for facilities at multiple temporary 
sites shall include: 



m 



£3} 



{41 



identification of each site; 
conditions that will assure compliance 
with all applicable requirements at all 
authorized locations; 
requirements that the permittee notify 
the Division at least 10 days in advance 
of each change of location; and 
conditions that assure compliance with 
all other provisions of this Section. 



Statutory Authority^ G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0511 SYNTHETIC FACILITIES 

(a) The owner or operator of a facility to which 
this Section applies may choose to have terms and 
conditions placed in his permit to restrict operation 
to limit the potential to emit of the facility iji order 
to remove the applicability of this Section to the 
facility. 

(b) Any permit containing terms and conditions 
to remove the applicability of this Section after one 
year after EPA approves this Section shall be 
processed according to Rules .0521 and .0522 of 
this Section when these terms and conditions are 
first placed in the permit. 

(c) After a facility is issued a permit that con- 



953 



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NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



tains terms and conditions to remove the applica- 
bility of this Section, the facility shall comply with 
the permitting requirements of Section .0300 of 
this Subchapter. 

(d) If the holder of a permit for a synthetic 
facility applies to change a term or condition that 
removed his facility from the a pplicability of this 
Section, the application shall be processed under 
this Section. 

(e) The Director may require monitoring, 
recordkeeping, and reporting necessary to assure 
compliance with the terms and conditions placed in 
the permit to remove the applicability of this 
Section. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.65; 143-215.66; 143-215. 107(a)(10); 143- 
215. 108. 

.0512 PERMIT SHIELD AND APPLICATION 
SHIELD 

(a) Permit Shield: 

(1) The Director shall place in a permit 
issued under this Section a permit term 
or condition (a permit shield) stating 
that compliance with the conditions of 
the permit shall be deemed compliance 
with applicable requirements specifical- 
]y identified in the permit in effect as of 
the date of permit issuance, provided 
that: 

(A) Such applicable requirements are 
included and are specifically identified 
in the permit; or 

£B} The Director, in acting on the permit 
application or revision, determines in 
writing that other requirements specif- 
ically identified are not applicable to 
the source, and the permit includes 
the determination or a concise sum- 
mary thereof. 

(2) A permit that does not expressly state 
that a permit shield exists shall be 
presumed not to provide such a shield. 

(3) A permit shield shall not alter or affect: 

(A) the power of the Commission, Secre- 
tary of the Department, or Governor 
under G.S. 143-215. 3(a)(12) or EPA 
under Section 303 of the federal 
Clean Air Act; 

(B) the liability of an owner or operator 
of a facility for any violation of appli- 
cable requirements prior to or at the 
time of permit issuance; 

(C) the applicable requirements under 



Title IV; or 
(D) the ability of the Director (or EPA 
under Section 1 14 of the federal 
Clean Air Act) to obtain information 
to determine compliance of the facility 
with its permit, this Section, or Sub- 
chapter 2D of this Chapter. 
(41 A permit shield shall not a pply to any 
change made at a facility that does not 
require a permit revision. 
(5) A permit shield shall not extend to 
minor permit modifications made under 
Rule .0515 of this Section until the 
minor permit modification is approved 
by the Director and EPA; then the 
Director may place a permit shield in 
the permit for the minor permit modifi- 
cation. 

(b) Application Shield. 

(1) Except as provided in of Paragraph 
(T3)(2) of this Rule, if the applicant 
submits a timely and complete applica- 
tion for permit issuance (including for 
renewal), the facility's failure to have a 
permit under this Section shall not be a 
violation: 

(A) unless the delay in final action is due 
to the failure of the applicant timely 
to submit information as required or 
requested by the Director, or 

(B) until the Director takes final action on 
the permit application. 

(2) Paragraph (b)(1) of this Rule shall cease 
to apply if, subsequent to the complete- 
ness determination made under Rule 
■0507 of this Section, the applicant fails 
to submit by the deadline specified in 
writing by the Director, any additional 
information identified as being needed 
to process the application. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0513 PERMIT RENEWAL AND 
EXPIRATION 

(a) Permits being renewed are subject to the 
procedural requirements of this Section, including 
those for public participation and affected State 
and EPA review. 

(h) Permit expiration terminates the facility's 
right to operate unless a complete renewal applica- 
tion has been submitted at least nine months before 
the date of permit expiration. 

(c) TTie existing permit shall not expire until the 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



954 



PROPOSED RULES 



renewal permit has been issued or denied. All 
terms and conditions of the existing permit shall 
remain in effect until the renewal permit has been 
issued or denied. 

Statutory Authority 143-215. 3(a)(l ); 143- 
215. W7(a)(10): 143-215. 108. 

.0514 ADMINISTRATIVE PERMIT 
AMENDMENTS 

(a) An "administrative permit amendment" 
means a permit revision and that: 

(1 ) corrects typographical errors; 

(2) identifies a change in the name, address 
or telephone number of any individual 
identified in the permit, or provides a 
similar minor administrative change at 
the facility; 

requires more frequent monitoring or 
reporting by the permittee; 
changes in test dates or construction 
dates; 



13} 
14} 
15} 



moves terms and conditions from the 
State-enforceable only portion of a 
permit to the State-and-federal-enforce- 
able portion of the permit; 

(6) moves terms and conditions from the 
federal-enforceable only portion of a 
permit to the State-and-federal-enforce- 
able portion of the permit; 

(7) changes the permit number without 
changing any portion of the permit that 
is federally enforceable that would not 
otherwise qualify as an administrative 
amendment; or 

(8) changes the State-enforceable only 
portion of the permit. 

(b) In making administrative permit amend- 
ments, the Director: 

(1) shall take final action on a request for 
an administrative permit amendment 
within 60 days after receiving such 
request. 

(2) may make administrative amendments 
without providing notice to the public 
or any affected State(s) provided he 
designates any such permit revision as 
having been made pursuant to this 
Rule, and 

(3) shall submit a copy of the revised per- 
mit to EPA. 

(c) TTie permittee may implement the changes 
addressed in the request for an administrative 
amendment immediately upon submittal of the 
request. 



ill 

m. 

£3} 



(d) Upon taking final action granting a request 
for an administrative permit amendment, the 
Director may allow coverage by the permit shield 
under Rule .0512 of this Section for the adminis- 
trative permit amendments made. 

(e) Administrative amendments for sources 
covered under Title IV shall be governed by rules 
in Section .0400 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10): 143-215. 108. 

.0515 MINOR PERMIT MODIFICATIONS 

(a) The procedures set out m this Rule may be 
used for permit modifications when the modifica- 
tions: 

do not violate any applicable require- 
ment; 

do not involve significant changes to 
existing monitoring, reporting, or 
recordkeeping requirements in the 
permit; 

do not require or change a case-by-case 
determination of an emission limitation 
or other standard, or a source-specific 
determination for temporary sources of 
ambient impacts, or a visibility or 
increment analysis; 

do not seek to establish or change a 
permit term or condition for which 
there is no corresponding underlying 
applicable requirement and that the 
facility has assumed to avoid an 
applicable requirement to which the 
facility would otherwise be subject. 
Such terms and conditions include: 

(A) a federally enforceable emissions cap 
assumed to avoid classification as a 
modification under any provision of 
Subchapter 2D of this Chapter; or 

(B) an alternative emissions limit 
approved as part of an early reduction 
plan submitted pursuant to Section 
1 12(i)(5) of the federal Clean Air Act; 

are not modifications under any 
provision of Title I of the federal Clean 
Air Act; and 

are not required to be processed as a 
significant modification under Rule 
.0516 of this Section. 



m 



15} 



16} 



(b) In addition to the items required under Rule 
.0505 of this Section, an application requesting the 
use of the procedures set out in this Rule shall 
include: 

( 1 ) an application form including: 



955 



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PROPOSED RULES 



(A) a description of the change. 

(B) the emissions resulting from the 
change, and 

(C) identification of any new applicable 
requirements that will apply if the 
change occurs; 

{2} a list of the facility's other pending 
applications awaitinp group processing 
and a determination of whether the 
requested modification, aggregated with 
these other applications, equals or 
exceeds the thresholds set out under 
Paragraphs (c)(1) through (3) of this 
Rule; 

(3) the applicant's suggested draft permit; 

(4) certification by a responsible official 
that the proposed modification meets 
the criteria for using the procedures set 
out in this Rule and a request that these 
procedures be used; and 

(5) complete information for the Director 
to use to notify EPA and affected 
States. 

" (c) The Director shall use group processing for 
minor permit modifications processed under this 
Rule. The Director shall notify EPA and affected 
States of the requested permit revisions under this 
Rule and shall provide the information specified in 
Rule .0522 of this Section on a quarterly basis. If 
the aggregated emissions from all pending minor 
permit modifications exceed: 

(1) 10 percent of the emissions allowed for 
the source for which the change is 
requested, 

(2) 20 percent of the a pplicable definition 
of major facility, or 

(3) five tons per year. 

then the Director shall notify EPA and affected 
States within five business days of the requested 
permit revision under this Rule and shall provide 
the information specified in Rule .0522 of this 
Section. 

(d) Within 180 days after receiving a completed 
application for a permit modification or J_5 days 
after the end of EPA's 45 -day review period, 
whichever is later, the Director shall: 

(1) issue the permit modification as pro- 
posed; 

(2) deny the permit modification applica- 
tion; 

(3) determine that the requested modifica- 
tion does not qualify for the procedures 
set out in this Rule and should there- 
fore, be processed under Rule .0516 of 
this Section; 



(4) revise the draft permit modification and 
transmit the proposed permit to EPA. 

(e) TTie permit applicant may make the change 
proposed in his minor permit modification applica- 
tion immediately after filing the completed applica- 
tion with the Division. After the applicant makes 
the change, the facility shall comply with both the 
applicable requirements governing the change and 
the proposed permit terms and conditions until the 
Director takes one of the final actions specified in 
Paragraph (d)(1) through (d)(4) of this Rule. 
Between the filing of the permit modification 
application and the Director's final action, the 
facility need not comply with the existing permit 
terms and conditions it seeks to modify. However. 
if the facility fails to comply with its proposed 
permit terms and conditions during this time 
period, the Director may enforce the terms and 
conditions of the existing permit that the a pplicant 
seeks to modify. 

(f) The permit shield allowed under Rule .0512 
of this Section shall not extend to minor permit 
modifications, until the minor permit modification 
is approved by the Director and EPA; then the 
Director may place a permit shield in the permit 
for the minor permit modification. 

(g) If the State-enforceable only portion of the 
permit is revised, the procedures in Section .0300 
of this Subchapter shall be followed. The proceed- 
ings shall affect only those parts of the permit 
related to the modification. 

Statutory Authority G.S. 143-21 5. 3 (a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0516 SIGNIFICANT PERMIT 
MODIFICATION 

(a) The procedures set out in this Rule shall be 
used for applications requesting permit modifica- 
tions under this Rule or permit modification that 
do not qualify for Ruje .0514. .0515. .0523, or 
.0524 of this Section. 

(b) Significant modifications include the follow- 
ing: 

(1) involve a significant change in existing 
monitoring permit terms or conditions 
or relax any reporting or recordkeeping 
permit terms or conditions; 

(2) require or change a case-by-case deter- 
mination of an emissions limitation or 
other standard, or a source-specific 
determination for temporary sources of 
ambient impacts, or a visibility or 
increment analysis; 

(3) seek to establish or change a permit 



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956 



PROPOSED RULES 



14] 



i5] 



term or condition for which there is no 
corresponding underlying applicable 
requirement and that the facility has 
assumed to avoid an applicable require- 
ment to which the facility would other- 
wise be subject; 

are modifications under any provision 
of 15A NCAC 2D or 2Q or liHe I of 
the federal Clean Air Act; or 
any modification not processed under 
Rule .0514. .0515. .0523. or .0524 of 
this Section. 

(c) An application for a significant permit 
modification that would contravene or conflict with 
the existing permit shall be processed following the 
procedure set out in Rule .0501(d) of this Section. 

(d) An application for a significant permit 
modification that does not contravene or conflict 
with the existing permit shall be processed 
following the procedure set out in Rule .0501(c) of 
this Section. 

(e) This Rule shall not preclude the permittee 
from making changes consistent with this Section 
that would render existing permit compliance 
terms and conditions irrelevarvL 

(f) Except for the State-enforceable only portion 
of the permit, the procedures set out in Rule 
.0507. .0521. or .0522 of this Section shall be 
follov.'ed to revise a permit under this Rule. If the 
State-enforceable only portion of the permit is 
revised, the procedures in Section .03(X) of this 
Subchapter shall be followed. The proceedings 
shall affect only those parts of the permit related to 
the significant modification. 

Statutory Authority G.S. 143-215. 3(a)(i); 143- 
215. 107(a)il0): 143-215. 108. 

.0517 REOPENING FOR CAUSE 

(a) A permit shall be reopened and revised 
under the following circumstances; 

( 1 ) Additional applicable requirements 
become applicable to a faciliU' with 
remaining permit term of three or more 
years; 
Additional re<quirements (including 



121 



i3i 



excess emissions requirements) become 
applicable to a source covered by Title 
IV (Upon approval by EPA, excess 
emissions offset plans shall be deemed 
to be incorporated into the permit. ); 
The Director or EPA finds that the 
permit contains a material mistake or 
that inaccurate statements were made in 
establishing the emissions standards or 



other terms or conditions of the permit; 
or 
(4) The Director or EPA determines that 
the permit must be revised or revoked 
to assure compliance with the 
applicable requirements. 
(h) Any permit reopening under Subparagraph 
(a)(1) of this Rule shall be completed or a revised 
permit issued within 18 months: 

( 1 ) after submittal of a complete application 
if an application is required, or 

(2) after the applicable requirement is 
promulgated if no application is 
required. 

No reopening js required if the effecti\e date of 
the requirement is after the expiration of the 
permit term. 

(c) Except for the State-enforceable only portion 
of the permit, the procedures set out in Rule 
.0507. .0521. or .0522 of this Section shall be 
followed to reissue a permit that has been 
reopened under this Rule. If the State-enforceable 
only portion of the permit is reopened, the 
procedures in Section .03(X) of this Subchapter 
shall be followed. The proceedings shall affect 
only those parts of the permit for which cause to 
reopen exists. 

(d) The Director shall notif\' the permittee at 
least 30 days in advance of the date that the permit 
is to be reopened, except in cases of emergency 
the Director may notice the permittee in less than 
30 days before reopening the permit. The notice 
shall explain v.'hv the permit is being reopened. 

ie] Within 90 days, or 180 days if EPA extends 
the response period, after recei\'ing notification 
from EPA that it finds that a permit needs to be 
terminated, modified, or revoked and reissued, the 
Director shall send to EPA a 



determination of termination. 



proposed 
modification, or 



revocation and reissuance, as appropriate. 

Statutory Authority G.S. 143-215. 3(a)(1): 143- 
215. 107(a)(10); 143-215.108. 

.0518 FIN.\L ACTION 

(a) The Director may: 

(1) issue a permit, permit re\'ision. or a 
renewal containing the conditions 
necessary' to carry' out the purposes of 
G.S. Chapter 143. Article 21B and the 
federal Clean Air Act; or 

(2) rescind a permit upon request by the 
permittee; or 

(3) deny a permit application when 
necessary to cam' out the purposes of 



957 



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PROPOSED RULES 



G.S. Chapter 143, Article 21 B and the 
federal Clean Air Act. 

(b) The Director may not issue a final permit or 
permit revision, except administrative permit 
amendments covered under Rule .0514 of this 
Section, until EPA's 45-dav review period has 
expired or until EPA has notified the Director that 
EPA will not object to issuance of the permit or 
permit revision, whichever occurs first. The 
Director shall issue the permit or permit revision 
within five days of receipt of notification from 
EPA that it will not object to issuance or of the 
expiration of EPA's 45 -day review period, 
whichever occurs first. 

(c) If EPA objects to a proposed permit, the 
Director shall respond to EPA's objection within 
90 days after receipt of EPA's objection. The 
Director shall not issue a permit under this Section 
over EPA's objection. 

(d) Any person whose application for a permit, 
permit revision, or renewal is denied or is granted 
subject to conditions which are unacceptable to 
him shall have the right to appeal the Director's 
decision under Article 3 of G.S. 150B. The 
person will have 30 days following the notice of 
the Director's decision on the application, permit, 
or permit revision in which to appeal the 
Director's decision. 

(e) If EPA does not object in writing to the 
issuance of a permit, any person may petition EPA 
to make such objections by following the 
procedures and meeting the requirements under 40 
CFR 70.8(d). 

(f) No permit shall be issued, revised, or 
renewed under this Section unless all the procedure 
set out in this Section have been followed and all 
the requirements of this Section have been met. 
Default issuance of a permit, permit revision, or 
permit renewal by the Director is prohibited. 

(g) Final action shall be taken within 18 months 
of a submittal of a completed application except 
for applications submitted under Rule .0505 of this 
Section. 

(h) Thirty days after issuing a permit that is not 
challenged by the applicant, the Director shall 
notice the issuance of the final permit. The notice 
shall be issued in a newspaper of general 
circulation in the area where the facility is located. 
The notice shall include the name and address of 
the facility and permit number. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 



REVOCATION OF PERMITS 

(a) The Director may terminate, modify, or 
revoke and reissue a permit issued under this 
Section if: 



m 

121 

£41 
151 



The information contained 



in the 
su pport 



a pplication or presented in 
thereof is determined to be incorrect: 
The conditions under which the permit 
or permit renewal was granted have 
changed; 

Violations of conditions contained in 
the permit have occurred; 
The permit holder fails to pay fees 
required under Section .0200 of this 
Subchapter within 30 days after being 
billed; 

The permittee refuses to allow the 
Director oj; h 
upon 



s authorized 
presentation of 



(61 



representative 
credentials: 

(A) to enter the permittee's premises in 
which a source of emissions is located 
or in which any records are required 
to be kept under terms and conditions 
of the permit: 

(B) to have access to any copy or records 
required to be kept under terms and 
conditions of the permit; 

(C) to inspect any source of emissions, 
control equipment, and any 
monitoring equipment or method 
required in the permit; or 

(D) to sample any emission source at the 
facility: 

EPA requests that the permit be 
revoked under 40 CFR 70.7(g) or 
70.8(d); or 
The Director 



(7) The Director finds that termination, 
modification or revocation and 
reissuance of a permit is necessary to 
carry out the purpose of G.S. Chapter 
143, Article 21B. 

(b) To operate a facility or source after its 
permit has been revoked is a violation of this 
Section and G.S. 143-215.108. 

(c) Any person whose permit is terminated. 



modified, or revoked and reissued shall have the 
right to appeal the Director's decision under 
Article 3 of G.S. 150B. The person shall have 30 
days following the notice of the Director's decision 
on the termination, modification, or revocation and 
reissuance in which to a ppeal the Director's 
decision. 



.0519 TERMINATION, MODIFICATION, 



Statutory Authority G.S. 143-215. 3(a)(1), 



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958 



PROPOSED RULES 



(la), (lb); 143-215. 107(a)(10); 143-215.108. 

.0520 CERTIFICATION BY RESPONSIBLE 
OFFICIAL 

(a) A responsible official shall certify the truth, 
accuracy, and completeness of any application 
form, report, or compliance certification required 
under this Section or by a term or condition in a 
permit issued under this Section. 

(b) This certification shall state that, based on 
information and belief formed after reasonable 
inquiry, the statement and information in the 
document are true, accurate, and complete. 

Statutory Authority G. S. 143-215. 3(a)(1), (2); 143- 
215. 107(a)(10): 143-215. 108. 

.0521 PUBLIC PARTICIPATION 

(a) The Director shall sive public notice with an 
opportunity for comments and a hearing on all 
draft permits and permit revisions except permit 
revisions issued under Rules .0514. .0515. .0524 
of this Section. The Director may give public 
notice with an opportunity for comments and a 
hearing on draft permit revisions issued under Rule 
■0514. .0515. 0524 of this Section. 

(b) The notice shall be given by publication in 
a newspaper of general circulation in the area 
where the facility is located and shall be mailed to 
persons who are on the Division's mailing list for 
air quality permit notices. 

(c) The notice shall identify: 

(1) the affected facility; 

(2) the name and address of the permittee: 

(3) the name and address of the person to 
whom to send comments and requests 
for public hearing; 

(4) the name, address, and telephone 
number of a person from whom 
interested persons may obtain additional 
information, including copies of the 
permit draft. the application, 
compliance plan. monitoring and 
compliance reports, all other relevant 
supporting materials, and all other 
materials available to Division that are 
relevant to the permit decision; 

(5) the activity or activities involved in the 
permit action; 

(6) any emissions change involved in any 
permit modification; 

(7) a brief description of the comment 
procedures; 

(8) the procedures to follow to request a 
hearing unless a hearing has already 



been scheduled: and 
(9) the time and place of any hearing that 
has already been scheduled. 

(d) The Director shall send a copy of the notice 
to affected States and EPA. 

(e) The notice shall allow 30 days for public 
comments. 

(f) If the Director finds that a public hearing is 
in the best interest of the public, the Director shall 
require a public hearing to be held on a draft 
permit. Notice of a public hearing shall be given 
at least 30 days before the hearing. 

(g) If EPA requests a record of the comments 
and of the issues raised during the public 
participation process, the Director shall provide 
EPA this record. 

(h) Persons who desire to be placed on the 
Division's mailing list for air quality permit 
notices shall send their request to the address in 
Rule .0507 and shall pay an annual fee of thirty 
dollars ($30.00). 

li) Any persons requesting copies of material 
identified in Subparagraph (c)(4) of this Rule shall 
pay ten cents ($0. 10) a page for every page cop- 
ied. Confidential material shall be handled in 
accordance with Rule .0107 of this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1), (3); 143- 
215.107(a)(10); 143-215.108; 143-215.111(4). 

.0522 REVIEW BY EPA AND AFFECTED 
STATES 

(a) The Director shall provide EPA a copy of 
each permit application, including any application 
for permit revision, each proposed permit, and 
each final permit issued under this Section. If 
EPA has informed the Director that a permit 
application summary and relevant portion of the 
permit application and compliance plan are all U 
needs, the Director may provide this abridgement 
in place of the complete application. 

(b) The Division shall retain for five years a 
copy of all permit applications, permits, and other 
related material submitted to or issued by the 
Division under this Section. 

(c) The Director shall provide notice to each 
affected State of each draft permit at or before the 
time notice is provided to the public under Rule 
.0521 of this Section. 

(d) The Director, in writing, shall notify EPA 
and any affected State of any refusal by the Divi- 
sion to accept all recommendations for the pro- 
posed permit that the affected State submitted 
during the public or affected State review period 
and shall state the reasons for not accepting any 



959 



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PROPOSED RULES 



such recommendations . 

Statutory Authority G.S. 143-21 5. 3(a)(1): 143- 
215.107(a)(10); 143-215.108; 143-215.111(5). 

.0523 CHANGES NOT REQUIRING 
PERMIT REVISIONS 

{a} Section 5Q2(b)(10) changes: 

(1) The permittee may make Section 
502rb)(10) changes without having his 
permit revised if: 

£A} The changes are not a modification 
under 15A NCAC 2D of this 
Subchapter or Title I of the federal 
Clean Air Act; 

(B) The changes do not cause the 
emissions allowable under the permit 
to be exceeded; and 

(C) The permittee notifies the Director 
and EPA with written notification at 
least seven days before the change is 
made. 

(2) The written notification required under 
Part (a)(1)(C) of this Rule shall include: 

(A) a description of the change. 

(B) the date on which the change will 
occur, 

(C) any change in emissions, 

(D) any permit term or conditions that is 
no longer applicable as a result of the 
change. 

£3} Section 502(b)(10) shall be made in the 
permit the next time that the permit is 
revised or renewed, whichever comes 
first. 

(b) Off-permit changes. A permittee may not 
make any changes in his operation or emissions 
without revising his permit unless: 

(1) The change affects only insignificant 
activities and the activities remain 
insignificant after the change, or 

(2) The change is not covered under any 
applicable requirement. 

(c) Emissions trading. To the extent that 
emissions trading is allowed under 15A NCAC 
2D. emissions trading shall be allowed without 
permit revisions provided that: 

(1) All applicable requirements are met: 
and 

(2) The permittee complies with all terms 
and conditions of the permit in making 
the emissions trade. 

(d) The permit shield allowed under Rule .0512 
of this Section shall not apply to changes made 
under Paragraphs (a] or £b) of this Rule. 



Statutory Authority G.S. 143-21 5. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

.0524 OWNERSfflP CHANGE 

(a) Applications for ownership changes shall: 

(1) contain the information required under 
Rule .0505(4) of this Subchapter, and 

(2) follow the procedures under Section 
.0300 of this Subchapter. 

(b) When the Director permits an ownership 
change, he shall submit a copy of the permit to 
EPA as an administrative amendment. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10); 143-215. 108. 

SECTION .0600 - TRANSPORTATION 
FACILITY PROCEDURES 

.0601 PURPOSE OF SECTION AND 

REQUIREMENT FOR A PERMIT 

(a) The purpose of this Section is to describe the 
procedures to be followed in applying for and 
issuing a permit for a transportation facility. 

(b) Tlie owner or developer of a transportation 
facility subject to the requirements of 15A NCAC 
2D .0800 shall obtain a construction only permit 
following the procedures in this Section. An 
operation permit is not needed. 

(c) The owner or developer of a transportation 
facility required to have a permit under this 
Section shall not commence construction or 
modification of a transportation facility until he has 
applied for and received a construction permit. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108; 143-215. 109. 

.0602 DEFEsflTIONS 

For the purposes of this Section, the following 
definitions apply: 

(1 ) "Construction" means any activity 
following land clearing or grading that 
engages in a program of construction 
specifically designed for a transportation 
facility in preparation for the fabrication, 
erection, or installation of the building 
components associated with the 
transportation facility, e.g. curbing, 
footings, conduit, paving, etc. 

(2) "Level of service" means a qualitative 
measure describing operational conditions 
within a traffic stream; generally 
described in terms of such factors as 
speed and travel time, freedom to 



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960 



PROPOSED RULES 



maneuver, traffic interruptions, comfort 
and convenience, and safety. 

(3) "Owner or de\'eloper" means any person 
who owns, leases, develops, or controls 
a transportation facility. 

(4) "Transportation facility" means a 
complex source as defined at G.S. 143- 
213(22) and is subject to the 
requirements of 15A NCAC 2D .0800. 

Statutory Authority G.S. 143-213; 143-215. 3(a)(1); 
143-215. 108. 

.0603 APPLICATIONS 

(a) A transportation facility permit application 
may be obtained from and shall be filed in writing 
in accordance with Rule .0104 of this Subchapter. 

(b) Applicants shall file transportation facility 
permit applications at least 90 days before 
projected date of construction of a new 
transportation facility or modification of an 
existing transportation facility. 

(c) The permittee shall file requests for permit 
name or ownership changes as soon as the 
permittee is aware of the imminent name or 
ownership change. 

(d) A transportation facility permit application 
shall be made in triplicate on official forms of the 
Director and shall include plans and specifications 
giving all necessary data and information as 
required by the application form. 

(e) A transportation facility permit application 
containing dispersion modeling analyses that 
demonstrate compliance or traffic analyses 
shov^ing an acceptable level of service using 
planned roadway and intersection improvements 
shall include approval for the improvements from 
the appropriate state or city department of 
transportation. 

(f) Whenever the information provided on the 
permit application forms does not adequately 
describe the transportation facility, the Director 
may request that the applicant provide any other 
information that the Director considers necessary 
to evaluate the transportation facility. Before 
acting on any permit application, the Director may 
request any information from an applicant and 
conduct any inquiry or investigation that he 
considers necessary to determine compliance with 
applicable standards including traffic level of 
service. 

(g) A non-refundable permit application fee shall 
accompany each transportation facility permit 
application. The permit application fee is 
described in Section .0200 of this Subchapter. 



12] 
13) 



new (4) 



Statutory Authority G.S. 143-21 5. 3(a)(1); 143- 
215.108; 143-215.109. 

,0604 PUBLIC PARTICIPATION 

(a) Before approving or disapproving a permit to 
construct or modif\' a transportation facility, the 
Director shall provide public notice for comments 
with an opportunity to request a public hearing on 
the draft permit. 

(b) The public notice shall be given by 
publication in a newspaper of general circulation in 
the area where the transportation facility is 
located. 

(c) The public notice shall identify: 
(1) the affected facility; 

the name and address of the permittee; 
the name and address of the person to 
whom comments and requests for 
public hearing are to be sent; 
the name, address, and telephone 
number of a person from whom 
interested persons may obtain additional 
information, including copies of the 
draft permit. the application, 
monitoring and compliance reports, all 
other relevant supporting materials, and 
all other materials available to Division 
that are relevant to the permit decision; 

(5) a brief description of the proposed 
project; 

(6) a brief description of the public 
comment procedures; 

(7) the procedures to follow to request a 
public hearing unless a public hearing 
has already been scheduled; and 

(8) the time and place of any hearing that 
has already been scheduled. 

(d) The public notice shall allow at least 30 days 
for public comments. 

(e) If the Director finds that a public hearing is 
in the best interest of the public, the Director shall 
require a public hearing to be held on a draft 
permit. Notice of a public hearing shall be given 
at least 30 days before the public hearing. 

£0 The Director shall make available for public 
inspection in at least one location in the region 
affected, the information submitted by the permit 
applicant and the Division's analysis of that 
application. 

(g) Any persons requesting copies of material 
identified in Subparagraph (b)(4) of this Rule shall 
pay ten cents ($0. 10) a page for each page copied. 
Confidential material shall be handled in 
accordance with Rule .0107 of this Subchapter. 



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PROPOSED RULES 



Statutory Authority G.S. 143-215. 3(a)(1), (3); 143- 
215.4(b); 143-215.108; 143-215.109. 

.0605 FENAL ACTION ON PERMIT 
APPLICATIONS 

(a) The Director may: 

(1) issue a permit containing the conditions 
necessary to earn/ out the puqjoses of 
G.S. Chapter 143, Article 21B; 

(2) rescind a permit upon request by the 
permittee; or 

(3) deny a permit application when 
necessary to carry out the purposes of 
G.S. Chapter 143, Article 21B. 

(b) The Director shall issue a permit for the 
construction or modification of a transportation 
facility subject to the rules in 15A NCAC 2D 
.0800 if the permit applicant submits a complete 
application and demonstrates to the satisfaction of 
the Director that the applicable standards will not 
be exceeded. 

(c) The Director shall issue a permit for a 
period of time that the Director considers 
reasonable, but such period shall not exceed five 
years. 

(d) The Director shall not approve a permit for 
a transportation facility that: 

(1) interferes with the attainment or 
maintenance of any applicable standard, 

(2) results in a contravention of applicable 
portions of the implementation plan 
control strategy, or 

(3") is demonstrated with dispersion 
modeling to exceed an applicable 
standard . 

(e) Any person whose a pplication for a permit is 
denied or is granted subject to conditions which 
are unacceptable to him shall have the right to 
a ppeal the Director's decision under Article 3 of 
G.S. 150B. The person shall have 30 days 
following the notice of the Director's decision on 
the application or permit in which to appeal the 
Director's decision. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 108; 143-215. 109. 

.0606 TERMINATION, MODIFICATION 
AND REVOCATION OF PERMITS 

(a) Tlie Director may terminate, modify, or 
revoke and reissue any permit issued under this 
Section if: 

(1) The information contained in the appli- 
cation or presented in support thereof is 
determined to be incorrect; 



(2) The conditions under which the permit 
was granted have changed; 

{3} Violations of conditions contained in 
the permit have occurred; 

£4) The permittee refuses to allow the 
Director or his authorized representa- 
tive upon presentation of credentials: 

(A) to enter the permittee's premises 
where the transportation facility is 
located or where any records are 
required to be kept under terms and 
conditions of the permit; 

(B) to have access to any copy or records 
required to be kept under terms and 
conditions of the permit; 

(C) to inspect the transportation facility 
and any monitoring equipment or 
monitoring procedures required in the 
permit; or 

(D) to sample emissions from the facility; 
(5) The Director finds that modification or 

revocation of a permit is necessary to 
carry out the purpose of G.S. Chapter 
143. Article 21B. 

("b) The construction or continuation of construc- 
tion of a transportation facility after its permit has 
been revoked is a violation of this Section. G.S. 
143-215. 108. and G.S. 143-215. 109. 

(c) Any person whose permit is terminated, 
modified, or revoked and reissued shall have the 
right to appeal the Director's decision under 
Article 3 of G.S. 150B. The person shall have 30 
days following the notice of the Director's decision 
on the termination, modification, or revocation and 
reissuance in which to appeal the Director's 
decision. 



Statutory Authority G.S. 143-215. 3(a)(1), 
(la), (lb); 143-215.108; 143-215.109. 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coa.stal Management 
intends to adopt rules cited as 15A NCAC 7H 
.2101 - .2105. 

1 he proposed effective date of this action is 
February 1, 1994. 

1 he public hearing will be conducted at 4:00 
p.m. on September 23, 1993 at the Coastline 
Convention Center, 501 Nutt Street, Wilmington, 



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962 



PROPOSED RULES 



NC. 

Ixeason for Proposed Action: The adoptions of 
these rules will create a new CAMA General 
Permit which would authorize free-standing, 
wooden breakwaters within estuarine waters and 
public trust areas of environmental concern. 

i^onunent Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
October 1, 1993. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceeding 
at the public hearing. Additional information 
concerning the hearing or the proposals may he 
obtained by contacting Dedra Blackwell, Division 
of Coastal Management. PO Bo.x 27687, Raleigh, 
NC 27611- 7687. ' (91 9) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES 

FOR AREAS OF EWTRONMENTAL 

CONCERN 

SECTION .2100 - GENERAL PERMIT FOR 

CONSTRUCTION OF LOW IMPACT 

BREAKWATERS FOR SHORELINE 

PROTECTION IN ESTUARINE AND 

PUBLIC TRUST WATERS 

.2101 PUTIPOSE 

This permit will allow the construction of off- 
shore parallel breakwaters, made from wood, 
plastic lumber, or metal sheet piling for shoreline 
protection in public trust areas and estuarine 
waters according to authority provided in Sub- 
chapter 7J . 1 100 and according to the following 
guidelines. This permit will not apply within the 
ocean hazard AEC. 

Statutory Authority G.S. 113A-W7: 113.A-118.1. 

.2102 APPROVAL PROCEDLTiES 

(a) The applicant must contact the Division of 
Coastal Management and complete an application 
form requesting approval for development. The 
applicant shall pro\ide information on site loca- 
tion, dimensions of the project area, and his name 
and address. 

(b) The applicant must provide: 



(1 ) confirmation that a written statement 
has been obtained signed by the adja- 
cent riparian property owners indicating 
that they have no objections to the 
proposed work; or 

(2) confirmation that the adjacent riparian 
property owners have been notified by 
certified mail of the proposed work. 
Such notice should instruct adjacent 
property owners to provide any com- 
ments on the proposed development in 
writing for consideration by permitting 
officials to the Division of Coastal 
Management within 10 days of receipt 
of the notice, and, indicate that no 
response will be interpreted as no ob- 
jection. DCM staff will review all 
comments and determine, based on 
their relevance to the potential impacts 
of the proposed project, if the proposed 
project can be approved by a General 
Permit. If DCM staff finds that the 
comments are worthy of more in-depth 
review, the applicant will be notified 
that he must submit an application for a 
major development permit. 

(c) No work shall begin until an on-site meeting 
is held with the applicant and appropriate Division 
of Coastal Management representative so that the 
proposed breakwater alignment can be appropriate- 
ly marked. Written authorization to proceed with 
the proposed development may be issued during 
this visit. Construction of the breakwater must 
begin within 90 days of this visit or the general 
authorization expires and it will be necessary to re- 
examine the alignment to determine if the general 
authorization can be reissued. 

Statutory Authority G.S. n3A-107; 113A-118.1. 

.2103 PER\nT FEE 

The applicant must pay a permit fee of fifty 
dollars ($50.00) by check or money order payable 
to the Department. 

Statutory^ Authority G.S. 113A-107; 113A-118.1. 

.2104 GENERAL CONDITIONS 

(a) TTiis permit authorizes only the construction 
of breakwaters conforming to the standards in this 
Rule. 

(b) Individuals shall allow authorized representa- 
tives of the Department of Environment. Health, 
and Natural Resources to make periodic inspec- 
tions at any time deemed necessary in order to be 



963 



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PROPOSED RULES 



sure that the activity being performed under 
authority of this general permit is in accordance 
with the terms and conditions prescribed in this 
Rule. 

(c) There shall be no significant interference 
with navigation or use of the waters by the public 
by the existence of the breakwater authorized in 
this Rule. 

(d) This general permit may be either modified, 
suspended or revoked in whole or in part if the 
Department determines that such action would be 
in the best public interest. This general permit will 
not be applicable to proposed construction where 
the Department determines that authorization may 
be warranted, but that the proposed activity might 
significantly affect the quality of the human envi- 
ronment, or unnecessarily endanger adjoining 
properties. 

(e) This general permit will not be applicable to 
proposed construction when the Department deter- 
mines after any necessary investigations, that the 
proposed activity would adversely affect areas 
which possess historic, cultural, scenic, conserva- 
tion, or recreational values. 

(f) The Department may, on a case-by-case 
basis, determine that the general permit shall not 
be applicable to a specific construction proposal. 
In those cases , individual permit applications and 
review of the proposed project will be required 
according to 15A NCAC 7J. 

(g) This permit does not eliminate the need to 
obtain any other required state, local, or federal 
authorization. 

(h) Development carried out under this permit 
must be consistent with all local requirements, 
AEC Guidelines, and local land use plans current 
at the time of authorization. 

Statutory Authority G.S. 113A-107; 113A'118.1. 

.2105 SPECIFIC CONDITIONS 

(a) TTie breakwater shall be positioned no more 
than 20 feet waterward of the mean high water or 
normal water level contour (whichever is applica- 
ble) or 20 feet waterward of the waterward edge of 
existing emergent wetlands at any point along its 
alignment. For narrow waterbodies (canals, 
creeks, etc.) the breakwater alignment shall not be 
positioned offshore more than one third (1/3) the 
width of the waterbody. 

(h) Breakwaters authorized under this General 
Permit shall be allowed only in waters that average 
less than three feet in depth along the proposed 
alignment as measured from the mean high water 
or normal water level contour. 



(c) Construction authorized by this general 
permit will be limited to a maximum length of 500 
feet. 

(d) The breakwater shall be constructed with at 
least one inch openings between standard width (6 
to X2 inch) sheathing boards and at least one five 
foot opening at every 100 foot of breakwater. The 
breakwater sections may be staggered and overlap 
as long as the five foot separation between sections 
is maintained. Overlapping sections shall not 
overlap more than 10 feet. 

(e) TTie height of the breakwater shall not 
exceed one foot above mean high water or the 
normal water level. 

(f) Offshore breakwater sections shall be set 
back 15 feet from the adjoining property lines. The 
set back may be waived by written agreement of 



the adjacent riparian owner(s) or when the two 
adjoining riparian owners are co-applicants. Should 
the adjacent property be sold before construction 
of the breakwater begins, the applicant shall obtain 
a written agreement with the new owner waiving 
the minimum setback and submit it to the Division 
of Coastal Management prior to initiating any 
construction of the breakwater. 

(g) Breakwaters shall be marked at 100 foot 
intervals with reflectors extending at least three 
feet above mean high water. 

(h) No backfill of the breakwater or any other 
fill of wetlands, estuarine waters, public trust 
areas, or highground is authorized by this general 
permit. 

£i} No excavation of the shallow water bottom, 
any wetlands, or high ground is authorized by this 
general permit. 

(j) Tlie breakwater must be constructed of 
treated wood, plastic lumber, metal sheet piles or 
other suitable materials approved by Department 
personnel. 

(k) Perpendicular sections, return walls, or 
sections which would enclose estuarine waters or 
public trust areas shall not be allowed under this 
permit. 

(I) The permittee or property owner will main- 
tain the breakwater in good condition and in 
conformance with the terms and conditions of this 
permit or the remaining breakwater structure shall 
be removed within 30 days of notification from the 
Division of Coastal Management. 

Statutory Authority G.S. 113A-107; 113A-118.1. 



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964 



PROPOSED RULES 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15A NCA C lOF. 0339; and adopt rule cited as 15A 
NCAC lOF .0365. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 10:00 
a.m. on September 20, 1993 at the Archdale 
Building, Room 332, 512 N. Salisbury Street, 
Raleigh. NC 27604-1 188. 

txeason for Proposed Action: 

ISA NCAC lOF .0339 - To establish a no wake 

area near the camping areas on Lake James State 

Park. 

ISA NCAC lOF .036S - To establish a no wake 

zone on the Scuppemong River. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
September 1, 1993 to October 1, 1993. Such 
written comments must be delivered or mailed to 
the N. C. Wildlife Resources Commission, 512 N. 
Salisbury Street, Raleigh. NC 27604-1 188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0339 MCDOWELL COUNTY 

(a) Regulated Areas. This Rule applies to the 
following waters located on Lake James in 
McDowell County: 

(1) that area adjacent to the shoreline of the 
McDowell Wildlife Club property: 

(2) that area adjacent to the shoreline of the 
Marion Moose Club property; 

(3) that area known as Morgan Cove; 

(4) that area within 50 yards of the shore- 
line at the New Manna Baptist Youth 



Camp; 

(5) that area within 50 yards of the shore- 
line at Burnett's Landing; 

(6) the cove area adjacent to the State Park 
swimming area; 

(7) the cove area adjacent to the State Park 
picnic area and dock; 

(8) that area within 50 yards of camping 
areas in the Lake James State Park as 
designated by the appropriate markers: 

(9) ^ that area within 50 yards of the 
boat launching ramp at the Marion 
Lake Club. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake speed 
within any of the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Restricted Swimming Areas. No person 
operating or responsible for the operation of any 
vessel, surfboard or waterskis shall permit the 
same to enter any marked swimming area located 
on the regulated area. 

(d) Placement and Maintenance of Markers. 
The Board of Commissioners of McDowell County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule. 

Statutory Authority G. S. 75A-3; 75A-15. 

.0365 TYRRELL COUNTY 

(a) Regulated Area. This Rule applies to the 
following waters in Tyrrell County: that portion 
of the Scuppemong River from 300 yards west of 
the Highway 64 bridge to 100 yards east of the 
Highway 64 bridge as designated by the appropri- 
ate markers. 

(b) Speed Limit. It is unlawful to operate a 
vessel at greater than no-wake speed in the regulat- 
ed areas described in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Board of Commissioners of Tyrrell County is 
designated as the suitable agency for the placement 
and maintenance of the markers implementing this 
Rule. 

Statutory Authority G.S. 75A-3; 75A-15. 



965 



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PROPOSED RULES 



JSotice is hereby given in accordance with G.S. 150B-21.2 that the EHNR-Commission for Health Services 
intends to amend rule cited as 15A NCAC 20A .0006. 

1 he proposed effective date of this action is January 4, 1994. 

Ihe public hearing will be conducted at 10:00 a.m. on October 15, 1993 at the Groundfloor Hearing 
Room, Archdale Building, 512 N. Salisbury Street, Raleigh, NC. 

Jveason for Proposed Action: To implement legislation which provides $25,000 to purchase rabies 
treatment (immune globulin and vaccine) for medically indigent individuals exposed to rabid or potentially 
rabid animals. Individuals must be at or below the federal poverty level on July 1 of each fiscal year and 
treatment recommended by a physician. 

L^omment Procedures: All persons interested in these matters are invited to attend the public hearing. 
Written comments may be presented at the public hearing or submitted to John P. Barkley, Department of 
Justice, P. O. Box 629, Raleigh, NC 27602-0629. All written comments must be received by October 20, 
1993. Persons who wish to speak at the hearing should contact John P. Barkley at (919) 733-4618. 
Persons who call in advance of the hearing will be given priority on the speaker 's list. Oral presentation 
lengths may be limited depending on the number of people that wish to speak at the public hearing. Only 
persons who have made comments at a public hearing or who have submitted written comments will be 
allowed to speak at the Commission meeting. Comments made at the Commission meeting must either 
clarify previous comments or proposed changes from staff pursuant to comments made during the public 
hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS OR AGENCIES MAKE THEIR VIEWS AND OPINIONS KNOWN TO 
THE COMMISSION FOR HEALTH SERVICES THROUGH THE PUBUC HEARING AND COMMENT PROCESS, 
WHETHER THEY SUPPORT OR OPPOSE ANY OR ALL PROVISIONS OF THE PROPOSED RULES THE 
COMMISSION MAY MAKE CHANGES TO THE RULES AT THE COMMISSION MEETING IF THE CHANGES 
COMPLY WITH G.S. I50B-2I.2(f). 

tLdUor's Note: This Rule was filed as a temporary amendment effective August 9, 1993 for a period of 
180 days or until the permanent rule becomes effective, whichever is sooner. 

CHAPTER 20 - LABORATORY SERVICES 

SUBCHAPTER 20A - GENERAL POLICIES 

.0006 FEES 

(a) Upon request, this laboratory furnishes to authorized senders of specimens and samples kits and 
materials for collecting and submitting specimens and samples. The fees for these kits and materials are 
based on cost and are subject to change as costs change. 

(b) Upon request, this laboratory furnishes, to persons authorized to administer them vaccines and other 
biological such as antirabic treatments. The prices for these are based on cost and cost of shipment and are 
subject to change as these costs change. 

(c) An individual is eligible to receive rabies vaccine and immune globulin without charge for rabies 
post-exposure treatment when the individual meets all of the following criteria: 

(1) the individual's family income is at or below the federal poverty level in effect on July 1 of each 



8:11 NORTH CAROLINA REGISTER September 1, 1993 966 



PROPOSED RULES 



fiscal year as determined by the local health department: 

(2) the individual meets the residency and other re quirements set forth in 15A NCAC 24A .0200. 
except that the individual shall not be eligible for Medicaid or health insurance reimbursement 
for rabies post-exposure treatment as determined by the local health department; and 

(3) the treatment is recommended by a physician licensed to practice medicine. 

(d) fe) The State Laboratory of Public Health provides laboratory analysis services to assist owners and 
operators of public water systems in complying with the North Carolina Drinking Water Act. These 
services must be contracted for on a yearly basis and must be paid for in advance. Refunds of prepayments 
will be made only when: 

(1) The water system ceases to exist as a public water system or merges with a larger water system: 

(2) The water system changes in status from a community to a non-community water system or from 
a non-community to a community water system; 

(3) There has been an overpayment of fees; or 

(4) The laboratory fails to perform an analysis in accordance with the contract. 



(e) fd) Fees for the analysis of public water supplies shall be as follows: 



PARAMETER 
Inorganic Chemistry 
Organic Chemistry 
Coliform 
Trihalomethanes 
Sodium and Corrosivity 
Radiochemistry: 

gross alpha and beta 

radium 226 

radium 228 

uranium 
Any single organic or 
inorganic parameter 



FEE 


$200.00 


$190.00 


$20.00 


$ 60.00 


$ 60.00 


$ 50.00 


$65.00 


$ 50.00 


$ 75.00 



$ 15.00 



Statutory- Authorit\' G.S. 130A-5(12); 130A-326. 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCA C 
24A .0202. 

1 he proposed effective date of this action is 
January 4, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on October 15, 1993 at the Groundfloor 
Hearing Room, Archdale Building, 512 N. Salis- 
bury Street, Raleigh, NC 

Ixeason for Proposed Action: Recent legislation 
removed the purchase of care income scales from 
the law and increased Cancer Program funding for 
the purpose of increasing the income scale for that 
program to 100% of the federal poverty level. 



This amendment established income scales accord- 
ingly for all purchase of care programs. 

i^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P. O. Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by October 20, 1993. Persons 
who wish to speak at the hearing should contact 
John P. Barkley at (919) 733-4618. Persons who 
call in advance of the hearing will be given 
priority on the speaker's list. Oral presentation 
lengths may be limited depending on the number of 
people that wish to speak at the public hearing. 
Only persons who have made comments at a public 
hearing or who have submitted written comments 
will be allowed to speak at the Commission 
meeting. Comments made at the Commission 
meeting must either clarify previous comments or 
proposed changes from staff pursuant to comments 



967 



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PROPOSED RULES 



made during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES, ASSOCIATIONS, INSTITUTIONS, OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH 
SERVICES THROUGH THE PUBUC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES. THE COMMISSION MA Y MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-21.2(f). 

hiditor's Note: The amendments to Paragraphs 
(a), (b), (c), (d), (e), (/), and (g) were filed as a 
temporary amendment effective August 9, 1993 
for a period of 180 days or until the permanent 
rule becomes effective, whichever is sooner. 

CHAPTER 24 - GElNfERAL PROCEDURES 
FOR PUBLIC HEALTH PROGRAMS 

SUBCHAPTER 24A - PAYMENT 
PROGRAMS 

SECTION .0200 - ELIGIBILITY 
DETERMINATIONS 

.0202 DETERMINATION OF FINANCIAL 
ELIGIBILITY 

(a) A patient must meet the financial eligibility 
requirements of this Subchapter to be eligible for 
benefits provided by any of the payment programs-; 
except a s provided in Paragraph (b) of this Rule . 
Financial eligibility for all state funded payment 
programs shall be determined through application 
of the General Assembly's financial eligibility 
income scales for non medicaid medical program s. 
The definition of annual net income in Rule .0203 
of this Subchapter and the definitions of family in 
Rule .0204 of this Subchapter shall be used in 
applying the General Assembly's financial cligibili 
ty income scales and the federal poverty scale for 
payment program eligibility purposes . 

(b) A person shall be financially eligible for 
inpatient services under the Sickle Cell Program, 
and for inpatient services under Children's Special 
Health Services if the person is age 8-20 if the net 
family income is at or below the following scale: 
Family Size 1: $4,200; Family Size 2: $5,300; 
Family Size 3: $6,400; Family Size 4: $7,500; 
Family Size 5 and over: add $500 per family 
member. 



(c) A person shall be financially eligible for the 
Cancer Program, for outpatient services under the 
Sickle Cell Program, for outpatient services under 
Children's Special Health Services, and for inpa- 
tient services under Children's Special Health 
Services if the person is age 0-7, if the net family 
income is at or below the federal poverty level in 
effect on July \ of each fiscal year. 

{b) {d} A person shall be financially eligible for 
the federal — AIDS — Drug — Reimbursement HIV 
Medications Program if the person's net family 
income is at or below 85 percent of the federal 
poverty level in effect on April i of each fiscal 
year . 

(e) A person shall be financially eligible for the 
Kidney Program if the net family income is at or 
below the following scale: Family Size i 
$6,400; Family Size 2: $8,000; Family Size 3 
$9,600; Family Size 4: $11,000; Family Size 5i 
$12,000; Family Size 6 and over: add $800 p er 
family member. 

{ej ifl The financial eligibility requirements of 
this Subchapter shall not apply to: 

(1) Migrant Health Program; 

(2) Children's Special Health Services 
when the requirements of 15A NCAC 
21 F .0800 are met; 

(3) School Health Program financial 
eligibility determinations performed by 
a local health department which has 
chosen to use the financial eligibility 
standards of the Department of Public 
Instruction's free lunch program; 

(4) Prenatal outpatient services sponsored 
through local health department 
delivery funds, 15A NCAC 21 C .0200; 
or through Perinatal Program high risk 
maternity clinic reimbursement funds, 
15A NCAC 21C .0300; 

(5) Diagnostic assessments for infants up to 
12 months of age with sickle cell 
syndrome. 

^ £g} Except as provided in Paragraph (e) (^ 
of this Rule, once an individual is determined 
financially eligible for payment program benefits, 
the individual shall remain financially eligible for 
a period of one year after the date of application 
for financial eligibility unless there is a change in 
the individual's family size pursuant to Rule .0204 
of this Subchapter or his family's financial 
resources or expenses during that period. If there 
is a change, financial eligibility for payment 
program benefits must be redetermined. Financial 
eligibility must be redetermined at least once a 
year. 



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968 



PROPOSED RULES 



■fe) £hj For purposes of the Kidney Program, 
once an individual is determined to be financially 
eligible, if the application for financial eligibility 
was received by the Department in the fourth 
quarter of the fiscal year, the individual shall 
remain financially eligible for benefits under the 
Kidney Program until the end of the next fiscal 
year unless there is a change in the individual's 
family size pursuant to Rule .0204 of this 
Subchapter or his family's financial resources or 
expenses during that period. 

ff) {ij If the most current financial eligibility 
form on file with the Department shows that the 
patient was financially eligible on the date an 
Authorization Request for payment for drugs was 
received, the Authorization Request may be 
approved so long as the Authorization Request is 
received less than 30 days prior to the expiration 
of financial eligibility and the authorized service 
does not extend more than 30 days after the term 
©f — eligibility — expire s expiration of financial 
eligibility . 

Statutory Authority G.S. 130A-4.2: J30A-5(3): 
130A-124: 130A-i27: 130A-129: 130A-205. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. State Board of Cosmetic 
Art Examiners intends to amend rules cited as 21 
NCAC 141 .0105; 14J .0303. .0501; 14N .0114. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 1:00 
p.m. on October 4, 1993 at the Grove Towers, 5th 
Floor. 1110 Navaho Dr. , Raleigh, N. C. 

txeason for Proposed Action: 
21 NCAC 141 .0105 - To add fiirther information 
about transfer of credit. 

21 NCAC 14J .0303 - Add to per.wnal supplies 
with charge explained. 

21 NCAC 14J .0501 - Expand the area from which 
the Board can get records from out-of-state appli- 
cants. 

21 NCAC 14N .0114 - Additional explanation of 
Failure to Comply. 



L^omment Procedures: The record shall be open 
for 30 days to receive written and oral comments. 
Written comments should be received by the N. C. 
State Board of Cosmetic Art Examiners by October 
4, 1993, and requests to speak must be in writing 
and received by September 27, 1993 prior to the 
hearing, to be considered as part of the hearing 
record. Comments should be addressed to Vicky 
R. Goudie, Executive Secretary, N. C. State Board 
of Cosmetic Art Examiners, 1110 Navaho Dr., 
Raleigh, N.C. 27609. Time allowed five minutes 
to speak. 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMINERS 

SUBCHAPTER 141 - OPERATIONS OF 
SCHOOLS OF COSMETIC ART 

SECTION .0100 - RECORD KEEPING 

.0105 TRANSFER OF CREDIT 

(a) In order that hours may be transferred from 
one cosmetic art school to another, a student must 
pass an entrance examination given by the school 
to which the student is transferring, co\ering the 
portion of work completed in the previous school 
or schools attended. 

(b) A cosmetology student must complete at 
least 250 hours in the cosmetic art school certify- 
ing his or her application for the state board 
examination. 

(c) Upon written petition by the student, the 
Board, in its discretion, may make an exception to 
the requirements set forth in Paragraph (b) of this 
Rule if the student shows that unusual circumstanc- 
es beyond the student's control prohibited him or 
her from completing 250 hours at the school which 
certifies his or her application. 

(d) A student who wishes to transfer from a 
cosmetology course to a manicuring course may 
not receive credit for hours received in the cosme- 
tology course. 

(e) A student who wishes to transfer from a 
manicurist course to a cosmetology course may not 
receive credit for hours received in the manicurist 
course. 

Statutory Authority G.S. 88-23; 88-30. 

SL^CHAPTER 14J - COSMETOLOGY 
CLTtRICLT^LTVI 

SECTION .0300 - COMBINED STLDIES 



969 



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NORTH CAROLINA REGISTER 



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PROPOSED RULES 



.0303 STUDENTS' PERSONAL SUPPLIES 

Each student shall have the following minimum 
supplies: 

(1) manicure supplies and implements for a 
complete manicure; 

(2) six combs; 

(3) six brushes; 

(4) sufficient pin curl clips; 

(5) sufficient smooth rollers; 

(6) one marcel comb; 

(7) one electric curling iron; 

(8) one razor; 

(9) two scissors, one tapered and one 
straight; 

(10) one eyebrow tweezer; 

(11) one tint comb; 

(12) one blow dryer; and 

(13) one copy of "An Act to Regulate the 
Practice of Cosmetic Art in the State of 
North Carolina"^ and a copy of the 
course curriculum requirements, both of 
which shall be at no charge for the first 
copy, issued by the Board. 

Statutory Authority G.S. 88-23. 

SECTION .0500 - CREDIT FOR 

COSMETOLOGY STUDY OUTSIDE OF 

NORTH CAROLINA 



the amount of credit that the student would receive 
for instruction in a school licensed by the Board. 
If the certification includes only total hours and 
does not specify what performances have been 
completed, this Board will not give any credit for 
performances completed as part of the out-of-state 
instruction. 

Statutory Authority G.S. 88-10; 88-13. 

SUBCHAPTER 14N - EXAMINATIONS 

SECTION .0100 - GENERAL PROVISIONS 

.0114 FAILURE TO COMPLY WITH 
CHAPTER 

(a) The examiner may dismiss from the exami- 
nation any candidate who fails to comply with this 
Chapter or who disrupts the examination^ and the 
examination may be treated as having been failed 
by the applicant . 

(b) With respect to fees only, a candidate who 
has been dismissed pursuant to Paragraph (a) of 
this Rule, will be treated as though the candidate 
has failed to appear. 

Statutory Authority G.S. 88-10(2); 88-12(2); 
88-16; 88-17; 88-21 (a)(l 6); 88-23; 88-30(4). 



.0501 APPROVAL OF CREDIT FOR 

COSMETOLOGY INSTRUCTION/ 
ANOTHER STATE 

(a) A cosmetology student may receive credit 
for instruction taken in another state if the condi- 
tions set forth in this Rule are met. 

(b) The cosmetology student's record shall be 
certified by the state agency or department that 
issues licenses to practice in the cosmetic arts. If 
this agency or department does not maintain any 
student records or if the state does not give license 
to practice in the cosmetic arts, then the records 
may be certified by any state department^ ef state 
agency^^ or the certified schools m states where the 
Board or another state agency does not keep 
records, that docs do maintain such records and is 
are willing to certify their accuracy. If no state 
department^ ef board or certified school will 
certify the accuracy of the student's records, then 
this Board will not give any credit for the 
out-of-state instruction. 

(c) If the requirements of Paragraph (b) of this 
Rule are met, then the Board will give credit for 
hours of course work and for mannequin and live 
model performances to the extent certified, up to 



8:11 



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September 1, 1993 



970 



PROPOSED RULES 






I\otice is hereby given in accordance with G.S. I50B-21.2 that the North Carolina Board of Mortuary 
Science intends to amend rule cited as 21 NCAC 34A .0201. 

1 he proposed effective date of this action is December 1 , 1993. 

1 he public hearing will he conducted at 10:00 a.m. on October 15, 1993 at the Board Room, 801 
Hillsborough Street, Raleigh. NC 27603. 

MXeason for Proposed Action: To reduce total license fees of persons holding both funeral director's and 
embalmer 's licenses. 

K^omment Procedures: Interested persons may present statements, orally and in writing, at the public 
hearing and in writing prior to the hearing by mail addressed to the NC Board of Mortuary Science, Bo.x 
27368, Raleigh. NC 27611-7368. 

CHAPTER 34 - BOARD OF MORTUARY SCIENCE 

SUBCHAPTER 34A - BOARD FUNCTIONS 

SECTION .0200 - FEES AND OTHER PAYMENTS 



.0201 FEES AND PENALTIES 

(a) Fees for funeral service shall be as follows: 
Establishment permit 

Application 

Annual renewal 

Late renewal penalty 
Establishment reinspection fee 
Courtesy card 

Application 

Annual renewal 
Out-of-state licensee 

Application 
Embalmer, funeral director, funeral service 

Application. North Carolina resident 

Application, non-resident 
Annual renewal 

Embalmer 

Funeral director 

Total fee, embalmer and funeral director, 

when both are held by same person 

Funeral service 

Reinstatement fee 
Resident trainee permit 

Application 

Annual renewal 

Late renewal penalty 



$250.00 
$150.00 
$100.00 
$100.00 

$ 75.00 
$ 50.00 

$200.00 

$150.00 
$200.00 

$ 30.00 $ 40.00 
$ 30.00 $ 40.00 

$ 60.00 
$ 60.00 
$ 50.00 

$ 50.00 
$ 35.00 
$ 25.00 



971 



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September 1, 1993 



PROPOSED RULES 



Duplicate license certificate 
Chapel registration 

Application 

Annual renewal 

(b) Fees for crematories shall be as follows: 

License 

Application 

Annual renewal 

Late renewal penalty 
Crematory reinspection fee 
Per-cremation fee 

(c) Fees for preneed funeral contract regulation shall be as follows: 

Preneed funeral establishment license 

Application 

Annual renewal 
Preneed sales license 

Application 

Annual renewal 

Statutory Authority G.S. 90-21 0.23(a); 90-210.28; 90-210.48; 90-210.67(b).(c). 



$ 25.00 

$150.00 
$100.00 



$400.00 
$150.00 
$ 75.00 
$100.00 
$ 5.00 



$100.00 
$100.00 

$ 10.00 
$ 10.00 



TITLE 25 - OFFICE OF STATE 
PERSONNEL 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Office of State Personnel/ State 
Personnel Conunission intends to amend rules cited 
as 25 NCAC ID .0301, .0308; IE .0205, .0209, 
.0301, .0314, .0706- .0710, .1102. .1105,. 11 10, 
. 1306. . 1402 - . 1406, . 1408; and adopt rules cited 
as 25 NCAC ID .2401 - .2404. 

1 he proposed effective date of this action is 
December 1, 1993. 

1 he public hearing will be conducted at 9:00 
a.m. on October 6, 1993 at the Personnel Devel- 
opment Center, 101 Peace Street, Raleigh, N. C. 

Mxeason for Proposed Action: 
25 NCAC ID .0301, .0308 - To clarify the defini- 
tion of promotion, to change the method by which 
salary increases for promotions are determined, 
and to reduce from 24 to 12 months the time that 
must elapse before a salary increase can be given 
after a reduction in grade with no cut in salary. 
25 NCAC ID .2401 - .2404 - To provide on-call 
compensation for Department of Correction em- 
ployees in criminal justice positions who provide 
electronic house arrest immediate response servic- 
es. 
25 NCAC IE .0205, .0209 - To conform to a 



recent revision of G. S. 126-8 which requires that 
excess vacation leave he converted to sick leave. 
25 NCAC IE .0301, .0314 - To offer guidance 
and clarification to state agencies and universities 
in conforming to Family and Medical Leave rules 
which became effective August 2, 1993 and to 
conform to recent revision of G.S. 126-8 which 
requires that excess vacation leave be converted to 
sick leave. 

25 NCAC IE .0706 - .0710 - To offer guidance 
and clarification to state agencies and universities 
in conforming to the amendment of G.S. 126-8 
which requires that excess vacation be converted to 
sick leave and to the amendment of Workers' 
Compensation leaves. 

25 NCAC IE .1102, .1105, .1110 - To provide a 
provision for employees who are not covered by 
the Family and Medical Leave Act and to conform 
to recent revision of G.S. 126-8 which requires 
that excess vacation leave be converted to sick 
leave. 

25 NCAC IE .1306 - To conform to the recent 
revision of G.S. 126-8 which requires that excess 
vacation leave be converted to sick leave. 
25 NCAC IE .1402 - .1406, .1408 - To offer 
guidance and clarification to state agencies and 
universities on further implementing the Family 
and Medical Leave Act which became effective 
August 2, 1993. 

(comment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 



8:11 



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September 1, 1993 



972 



PROPOSED RULES 



by mail addressed to: Barbara A. Coward, Office 
of State Personnel, 116 W. Jones Street, Raleigh, 
N.C. 27603. 

CHAPTER 25 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER ID - COMPENSATION 

SECTION .0300 - PROMOTION 

.0301 DEFINITION AND POLICY 

Promotion is a change in status upward, docu- 
mented according to customary professional proce- 
dure and approved by the State Personnel Direc- 
tor, resulting from assignment to a position ef 
assigned a higher level salary grade . When it is 
practical and feasible, a vacancy should be filled 
from among eligible employees; a vacancy must be 
filled by an applying employee if required by 25 
NCAC, Subchapter IH, Recruitment and Selec- 
tion, Section .0600, General Provisions, Rule 
.0625, Promotion Priority Consideration for 
Current Employees. Selection should be based 
upon demonstrated capacity, quality and length of 
service. 

Statutory Authority G.S. 126-4; 126-7.1. 

.0308 SALARY INCREASES 

The purpose of a promotional pay increase is to 
reward the employee for the assumption of duties 
more responsible and more difficult than those in 
the current position. Subject to the availability of 
funds, salary increases, not to exceed the maxi- 
mum of the range, may be given in accordance 
with the following: 

(1) Permanent Promotion: 

(a) Salaries at the hiring rate shall be in- 
creased to the new hiring rate. 

(b) Salaries at the minimum rate or within 
the range shall be increased to the new 
minimum rate of the grade to which 
promoted or by five percent, whichever 
is larger. Exceptions: 

(i) A promotional increase is not required 
if a specific salary rate or limitation is 
published in advance of a promotional 
offer because of internal salary equity 
or budget considerations in the receiv- 
ing work unit or agency. If this 
occurs, a salary increase above the 
salary rate posted may not be paid. If 
conditions change that eliminate the 
equity problem or if additional funds 



become available that can be used for 
this purpose, agency management may 
consider an additional increase in 
accordance with the provisions out- 
lined under Rule .0303 of this Sec- 
tion, 
(ii) If the employee's salary is above the 
maximum as a result of a reallocation 
down, no increase can be given, but 
the salary may remain above the 
maximum. 

(c) If the employee is promoted to a posi- 
tion within the same class series or 
occupational groupj^ 

£i} the salary may be increased by more 
than up to five percentT for each 
grade provided by the promotion, or 
(ii) the salary may be established in ac- 
cordance with the rules at 25 NCAC 
ID .0200, New Appointments. 
The amount of increase shall be deter 
mined oonsistcnt with the employee' s 
related training and cxp>cricnce and take 
into consid e ration prior pcrformanoc 
increases, work unit equity, and any 
other s alary related considerations. The 
total shall not exceed five percent for 
each grade provided by the promotion. 

(d) If the employee is promoted to a posi- 
tion in a different occupational area, the 
salary may be increased by more than 
five percent, the total not to exceed five 
percent for each grade provided by the 
promotion, if the employee has directly 
related training and/or experience above 
the minimum requirements to qualify 
for the salary reque s ted established in 
accordance with the rules at 25 NCAC 
ID .0200, New Appointments . The 
nature and magnitude of the change in 
jobs, the need to maintain equity of 
salaries within the work unit, and other 
management needs must be given con- 
sideration when making salary deci- 
sions. Agency management is responsi- 
ble for assuring that inequities are not 
created. When establishing salaries in 
accordance with 25 NCAC ID .0200, 
the personnel action forms must include 
the justification for the salary decision. 
If an employee has been reduced to a 
lower salary grade through demotion, 
reassignment, reallocation or salary 
range revision, but without a corre- 
sponding reduction in salary, and the 



973 



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September 1, 1993 



PROPOSED RULES 



^ 



^ 



employee is later promoted to a position 
with a higher grade, the number of 
grades in the original reduction shall be 
considered to have been compensated 
and shall not be considered in the salary 
setting procedure in this Rule. If the 
reduction in grade occurred as much as 
34 12 months previously, the agency 
may give consideration to granting a 
salary increase within the provisions of 
this policy. Factors to be considered 
are the nature of the change in jobs and 
the need to maintain equity of salaries 
within the work unit. 

(e) Only with the prior approval of the 
State Personnel Director and only in 
well-documented cases which involve 
circumstances such as severe labor 
market conditions, unusual change in 
the scope of work, extraordinary quali- 
fications, or resolution of serious equity 
problems will salary increases above 
that allowed by the provisions in this 
Sub-item be considered which equate to 
more than five percent for each grade 
provided by the promotion . Personnel 
forms must include the justification. 

(f) If the employee is to receive a perfor- 
mance salary increase on the same date 
as the promotion, the increase may be 
given before the promotional increase. 

(g) If an employee is promoted from a 
class for which there is no special entry 
rate into a class which has a special 
entry rate, the employee's salary may 
be increased by the amount of the 
promotional increase plus the percent 
difference between the minimum and 
the special entry rate authorization. 

(2) Temporary Promotion: 
(a) Temporary promotions may be made 
when an employee is placed in an 
"acting" capacity for a period of time. 
When an employee is placed in an 
"acting" capacity, at the discretion of 
management, one of the following may 
occur: 
(i) The employee may be placed in the 
higher level position (if vacant) with 
an understanding that he will return to 
the former position and salary when 
the position is filled, 
(ii) A salary adjustment may be given in 
the present position with the under- 
standing that the salary will be de- 



creased when the "acting" capacity 
terminates. Indicate in Section 21 of 
the PD-105 the position number and 
classification for which the employee 
is serving in an "acting" capacity. 
Also include expected duration of 
"acting" capacity. 

(b) TTie provisions for salary increases for 
permanent promotions apply in either 
case, except that the provision for a 
mandatory increase may not be applica- 
ble. 

(c) TTie length of time that an employee is 
in an acting capacity should be limited, 
and the amount of promotional salary 
increase determined by the degree of 
assumption of the higher level duties. 

Statutory Authority G.S. 126-4. 

SECTION 2400 - ON CALL 
COMPENSATION 

.2401 ELIGIBLE EMPLOYEES 

(a) Certain classes of positions are eligible for 
on-call compensation when the employee is re- 
quired to be on call and report for work upon 
contact via pager or telephone in the event of an 
emergency. These classes are as follows: 

(1) Employees in medical or paramedical 
positions. 

(2) Employees in positions involved in the 
repair of facilities or mechanical equip- 
ment necessary to protect State property 
and prevent conditions which have an 
adverse effect on the health or well- 
being of patients, inmates, or students, 
such as failures in the heating system, 
water supply, electricity, and other 
failures associated with building ap- 
pendages. 

(3) Employees in criminal justice positions 
which provide electronic house arrest 
immediate response services, in case of 
an offender's violation that jeopardizes 
the public's safety and may warrant 
emergency response by duly trained 
personnel. 

(b) Management is responsible for designating 
the individuals who are to be placed on call and 
submit a list of them to the agency personnel 
officer for approval. It is not intended that the 
provisions of this policy be applied to administra- 
tive or management personnel. 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



974 



PROPOSED RULES 



Statutory Authority G.S. 126-4: 126-4(5). 

.I'iai RATE OF PAY/COMPENSATORY TIME 

(a) The plan of compensation shown in this Paragraph shall apply. 

On Call Hours Compensatory Time Earned ; or ^ Payment Amount 

8 i hour $.94 per hour 

($7.52 per shift) 
If the aforementioned plan is not applicable to the work schedule, compute on a pro rata basis. (Example: 
A 12-hour shift would be VA hours compensatory time or $1 1.28 payment. An entire week (128 hours) 
would be 16 hours of compensatory time or $120.32 Payment.) 

£b} It is the intent of this provision that compensatory time be used whenever possible. Compensatory 
time is not accumulative beyond a \2 month period. For this reason, an employee should be required to 
take the time off as soon as possible after it is accumulated. If the time off is not taken within 12 months. 
or if an employee separates or transfers to another apency before U js taken, the employee shall be paid for 
the accumulated time. 

(c) If funds are available and cash payment is necessary, it will be paid on a special payroll. Instructions 
for agencies under Central Payroll will be issued by the State Controller's Office. 

Statutory Authority G.S. 126-4; 126-4(5). 



.2403 EMERGENCY CALL-BACK PAY 

(a) If the employee is called back to work, 
emergency call-back time provisions apply. 
( Reference Section . 1500. Emergency Call-Back 
Pay of this Subchapter.) 

(b) If emergency situations can be dealt with 
properly under the general provisions of emergen- 
cy call-back pay, the on-call provision shall not be 
used. 

Statutory Authority G.S. 126-4; 126-4(5). 

.2404 OVERTIME 

On-call time is not considered as working time 
for overtime purposes. The employee is free to 
engage in personal pursuits during any portion of 
the on-call shift; such personal pursuits should not 
restrict the employee from returning to work. 
However, if a cash payment is made for being on 
call, it must be included in the regular hourly rate 
when computing overtime payments. 

Statutory Authority G.S. 126-4; 126-4(5). 

SUBCHAPTER IE - EMPLOYEE BENEFITS 

SECTION .0200 - VACATION LEAVE 

.0205 MAXIMUM ACCUMULATION 

Leave may be accumulated without any applica- 
ble maximum until December 31 of each calendar 
year. However, if the employee separates from 
service, payment for accumulated leave shall not 
exceed 240 hours. On December 31 any employee 
with more than 240 hours of accumulated leave 



shall have the excess accumulation cancelled 
converted to sick leave so that only 240 hours are 
carried forward to January 1 of the next calendar 
year. 

Statutory Authority G.S. 126-4; 126-8. 

.0209 OPTIONS DURING LEAVE 
WITHOUT PAY 

(a) An employee going on leave without pay 
may exhaust vacation leave or may retain part or 
all accumulated leave until the employee returns, 
the only exception being: 

(1) if an employee has accumulated vaca- 
tion leave, all leave must be exhausted 
before going on leave without pay for 
vacation purposes; or 

(2) if an employee requests leave for other 
personal reasons for a period not to 
exceed 10 workdays, leave must be 
used if available; however, if the leave 
is for a period longer than 10 work- 
days, the employee may choose to use 
vacation leave or retain it for future 
use. Options for use of vacation leave 
for employees receiving Workers' 
Compensation Benefits are covered 
under Section .0700 of this Subchapter. 
Options for use of vacation leave for 
military purposes are covered under 
Military Leave. Section .0800 of this 
Subchapter. Options for use of vaca- 
tion leave for employees eligible for 
family and medical leave are covered 
under Family and Medical Leave. 



975 



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NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



Section .1400 of this Subchapter. 

(b) If leave without pay extends through Decem- 
ber 31. any leave accumulation above 240 hours 
shall be cancelled converted to sick leave . 

(c) When exhausting leave an employee contin- 
ues to accumulate leave, is eligible to take sick 
leave, is entitled to holidays and is eligible for 
salary increases during that period. 

Statutory Authority G.S. 126-4. 

SECTION .0300 - SICK LEAVE 

.0301 SICK LEAVE CREDITS 

(a) Sick leave credits at the rate of eight hours 
per month or 96 hours per year shall be provided 
for a full-time or part-time (half-time or more) 
permanent career , trainee or probationary employ- 
ee who is in pay status for one-half of the regular- 
ly scheduled workdays and holidays in a pay 
period. 

(b) Leave for part-time employees shall be 
computed as a percentage of total amount provided 
to a full-time employee. 

(c) In addition, vacation leave in excess of 240 
hours on December 31 of each year shall be 
converted to sick leave. 

Statutory Authority G.S. 126-4: 126-8. 

.0314 SICK LEAVE WITHOUT PAY 

(ft^ — Sick leave shall be exhausted before going 
on leave without pay for extended illness. — Tfee 
employee may also exhau s t vacation leave or may 
retain part or all of accumulated vacation leave. 
While exhausting leave, all benefits for which the 
employee is entitled are credited. 

ih) — Si«k Eligible employees shall be granted 
leave in accordance with 25 NCAC IE .1400, 
Family and Medical Leave for a period of 12 
workweeks. Additional leave without pay up to 
one year may be granted by the agency head for 
the remaining period of disability after s ick leave 
has been exhaust e d the 12-week period in accor- 
dance with the provisions of 25 NCAC IE .1 100, 
Other Leaves Without Pay . Extension of sick 
leave without pay beyond one year shall be man- 
aged by and documented by the agency head. 

fe) — Leave without pay will delay the salary 
increa s e anniver s ary date one pay period for each 
pay period the employee is on leave without pay 
over half the workdays in that pay period. 

Statutory Authority G.S. 126-4. 



SECTION .0700 - WORKER'S 
COMPENSATION LEAVE 

.0706 RESPONSIBILITY OF EMPLOYEE 
AND EMPLOYER 

(a) In accordance with G.S. 97-22 notice of an 
accident must be given to the employer by the 
employee or his/her representative as soon as 
possible. 

(b) The agency is required by law to report the 
injury to the North Carolina Industrial Commission 
using the I.C. Form 19 within five days from 
knowledge of any claim that results in more than 
one day's absence from work or if medical expens- 
es exceed eight hundred dollars ($800.00) two 
thousand dollars ($2,000.00) . 

(c) Responsibility for claiming compensation is 
on the injured employee. A claim must be filed by 
the employee through the agency/university with 
the North Carolina Industrial Commission within 
two years from the date of injury or knowledge 
thereof. Otherwise, the claim is barred by law. 

Statutory Authority G.S. 97-22; 126-4. 

.^1^1 USE OF LEAVE 

(a) The Workers' Compensation law provides 
medical benefits and disability compensation 
including a weekly compensation benefit equal to 
66% percent of the employee's average weekly 
earnings up to a maximum established by the 
Industrial Commission each year. When an 
employee is injured, he must go on workers" 
compensation leave and receive the workers' 
compensation weekly benefit after the required 
waiting period required by G.S. 97-28. One of the 
following options may be chosen: 

(1) Option 1 : Elect to take sick or vacation 
leave during the required waiting period 
and then go on workers' compensation 
leave and begin drawing workers" 
compensation weekly benefits. 

(2) Option 2: Elect to go on workers" 
compensation leave with no pay for the 
required waiting period and then begin 
drawing workers' compensation weekly 
benefits. 

If the injury results in disability of more than a 
specified number of days, as indicated in G.S. 
97-28, the workers' compensation weekly benefit 
shall be allowed from the date of disability. If this 
occurs in the case of an employee who elected to 
use leave during the waiting period, no adjustment 
shall be made in the leave used for these work- 
days. 



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September 1, 1993 



976 



PROPOSED RULES 



(b) In either case, after the employee has gone 
on workers' compensation leave, the weekly 
benefit may be supplemented by the use of partial 
earned sick or vacation leave in accordance with a 
schedule published by the Office of State Personnel 
each year. Since the employee must receive the 
weekly benefit, this will provide an income ap- 
proximately equal to the past practice of using 100 
percent of sick or vacation leave. 

(c) Compensatory time may be substituted for 
sick or vacation leave if applied within the time 
frames provided under the Hours of Work and 
Overtime Compensation Policy, (reference: 25 
NCAC ID, Section .1900, Rule .1928). 

(d) If the employee has earned leave or compen- 
satory time and chooses to use it while drawing the 
weekly benefit, it would be paid on a temporary 
payroll at the employee's hourly rate of pay. It is 
subject to State and Federal withholding taxes and 
Social Security, but not subject to retirement, just 
the same as other temporary pay. 

(e) Unused leave may be retained for future use. 
Note: — If an employee has over 2 4 hours of 
vacation leave at the time an injury occurs, do 
pending on the nature and time of the injury and 
the anticipated time out of work, he/she should be 
advised to exhaust leave in excess of the 2 4 hours 

particularly if the injury occur s late in the year 
when it would possibly cau s e a loss of vacation at 
the end of the year. 

(f) Employees injured on the job in a compensa- 
ble accident who have returned to work, but 
continue to require medical or therapy visits to 
reach maximum medical improvement, shall not be 
charged leave for time lost from work for required 
medical or therapy treatment. 

(g) (^ Employee Refusal of Coverage: Under 
certain circumstances an employee may elect to 
refuse workers' compensation benefits. If an 
employee refuses workers' compensation benefits 
for injuries resulting from an on the job injury a 
release statement, provided by the agency, must be 
signed by the employee. Unless there is a signed 
release statement an employee who loses time from 
work as a result of an on the job injury must be 
placed under the workers' compensation leave 
policy. 

Statutory Authority G.S. 97-28; 126-4. 

.0708 CONTINUATION OF BENEFITS 

While on workers' compensation leave an em- 
ployee is eligible for continuation of the following 
benefits: 

(1) Performance Increase: Upon reinstate- 



ment, an employee's salary will be com- 
puted based on the last salary plus any 
legislative increase to which he is enti- 
tled. Any performance increase which 
would have been given had the employee 
been at work may also be included in the 
reinstatement salary, or it may be given 
on any payment date following reinstate- 
ment. 

(2) Vacation and Sick Leave: While on 
workers' compensation leave, the em- 
ployee will continue to accumulate vaca- 
tion and sick leave to be credited to his 
account for use upon return. If the em- 
ployee does not return, vacation and sick 
leave accumulated during the first 12 
months of leave will be paid in a lump 
sum along with other unused vacation. 

(3) Since the employee is on workers' com- 
pensation leave and is not able to sched- 
ule vacation time off, the accumulation 
may in some cases exceed the 240 hours 
and shall be handled as follows: 

(a) The 240-hour maximum to be carried 
forward to the next calendar year may 
be exceeded by the amount of vacation 
accumulated during workers' compensa- 
tion leave. The excess may be used 
after returning to work or carried on 
the leave account until the end of the 
calendar year following a full year after 
the employee's return to work at which 
time any excess vacation shall be con- 
verted to sick leave. 

(b) If the employee separates during the 
period that excess vacation is allowed, 
the excess leave to be paid in a lump 
sum may not exceed the amount accu- 
mulated during the first 12 months of 
workers' compensation leave. 

(4) Hospitalization Insurance: While on 
workers' compensation leave, an employ- 
ee is in pay status and will continue 
coverage under the state's health insur- 
ance program. Monthly premiums for 
the employee will be paid by the state. 
Premiums for any dependent coverage 
must be paid directly by the employee. 

(5) Retirement Service Credit: While on 
workers' compensation leave an employ- 
ee does not receive retirement credit. As 
a member of the Retirement System, the 
employee may purchase credits for the 
period of time on an approved leave of 
absence. Upon request by the employee, 



977 



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September 1, 1993 



PROPOSED RULES 



f 



i 



► 



the Retirement System will provide a 
statement of the cost and a date by which 
purchase must be made. If purchase is 
not made by that date, the cost will have 
to be recomputed. 
(6) Longevity: While on workers' compen- 
sation leave an employee is in pay status 
and will continue to receive longevity 
credit. Employees who are eligible for 
longevity pay shall receive their annual 
payments. 

Statutory Authority G.S. 126-4. 

.0709 RETURN TO WORK 

When an employee, who has been injured on the 
job and placed on workers' compensation leave, 
has been released to return to work by the treating 
physician, there are three possible return to work 
situations. 

(1) When an employee who is on workers' 
compensation leave, has reached maxi- 
mum medical improvement and has been 
released to return to work by the treating 
physician, the agency shall return the 
employee to the original position he same 
position or one of like seniority, status 
and pay held prior to workers' compensa- 
tion leave. 

(2) When an employee who has not reached 
maximum medical improvement is ready 
to return to limited work duty with ap- 
proval of the treating physician but re- 
tains some disability which prevents 
successfiil performance in the original 
position, the agency shall provide work 
reassignment suitable to the employee's 
capacity which is both meaningful and 
productive and advantageous to the em- 
ployee and the agency. This work reas- 
signment shall be a temporary assignment 
and shall not exceed 90 days without 
approval from the agency personnel 
officer. When the employee reaches 
maximum medical improvement the 
agency shall return the employee to the 
original position same position or one of 
like seniority, status and pay held prior to 
workers' compensation leave. 

(3) When an employee has received a dis- 
ability which prohibits employment in his 
previous position and has reached maxi- 
mum medical improvement and been 
released to return to work by the treating 
physician the agency shall attempt to 



place the employee in another position 
suitable to the employee's capacity which 
is both meaningful and productive and 
advantageous to the employee and the 
agency. This work placement may be a 
permanent assignment or either a 
part-time or temporary assignment until 
a permanent assignment is found. 

(a) If a position is not available for work 
placement, the agency shall appoint the 
employee to the first suitable vacancy 
which occurs. During the interim 
period in which a suitable vacancy is 
not available, the employee shall be 
referred to the Office of State Personnel 
for reemployment assistance and a 
possible return to work in another 
agency . 

(b) Work placement efforts will continue 
for a period not to exceed 12 months, 
except with the approval of the agency 
personnel officer. Any — tH»e — an 

employee — has — reached maximum 

medioal improvement and is token off 
workers' — compensation — leave — but — a 
position is not available the employee 
shall be placed in leave without pay 

status. While in leave without pay 

status — the — employee — may — make 
arrangements — t© — continue — coverage 
under the state's health insurance plan. 
The employee is responsible for paying 
the total premium cost. 

(c) Vocational Rehabilitation Assistance. 
In some cases the extent of disability 
may be such that vocational 
rehabilitation will be necessary. If so, 
the agency will be responsible for 
making the necessary arrangements 
with the North Carolina Division of 
Vocational Rehabilitation for such 
training which may be necessary to 
assist the employee to obtain suitable 
employment consistent with his 
performance capabilities. 

Statutory Authority G.S. 126-4. 

.0710 REFUSAL OF SUITABLE 
EMPLOYMENT 

The Workers' Compensation Act prevents 
employers from firing or demoting employees in 
retaliation for pursuing remedies under the Act but 
does not speak to reemployment after an employee 
has been released by the treating physician to 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



978 



PROPOSED RULES 



return to work. If an employee who has been on 
workers' compensation leave has reached 
maximum medical improvement and been released 
to return to work by the treating physician refuses 
suitable employment in keeping with his capability, 
the employer has the right to request stop payment 
of compensation and implement dismissal 
procedures. 

Statutory Authority G.S. 126-4. 

SECTION .1100 - OTHER LEAVES 
WITHOUT PAY 

.1102 MAXIMUM AMOUNT 

Leave without pay normally shall not exceed 4-3 
six months, but may be extended based on 
individual circumstances. Any leave longer than 
12 months should be agreed upon by the agency 
head and the State Personnel Director. Leave 
Without Pay for military purposes is covered under 
Military Leave, Section .0800 of this Subchapter. 
Leave without pay for employees receiving 
Worker's Compensation Benefits is described in 
Section .0700 of this Subchapter. Parental leave 
without pay for employees eligible for family and 
medical leave is covered under Family and 
Medical Leave, Section . 1400 of this Subchapter. 
Parental leave without pay for employees not 
eligible for family and medical leave is covered at 
the end of this Subchapter. 

Statutory- Authority G.S. 126-4. 

.1105 RETENTION OF BENEFITS 

(a) The employee shall retain all accumulated 
unused sick leave, retirement status, and time 
earned toward the next annual salary increase. 
Eligibility to accumulate leave and time toward 
salary increases ceases on the date leave without 
pay begins. 

(b) Accumulated vacation leave may be 
exhausted before going on leave without pay, or 
the employee may choose to retain part or all of 
accumulated leave until return to state service. 
Exceptions: 

(1) if an employee has accumulated 
vacation leave, all vacation leave must 
be exhausted before going on leave 
without pay for vacation purposes; or 

(2) if an employee requests leave for 
personal reasons for a period not to 
exceed 10 work days, vacation leave 
must be used if available; however, if 
the leave is for a period longer than 10 



work days, the employee may choose to 

use vacation leave or retain it for future 

use. If leave without pay extends 

through December 3 1 , any vacation 

leave accumulation above 240 hours 

shall be cancelled converted to sick 

leave . 

When exhausting leave the employee continues to 

earn leave, is eligible to take sick leave, is entitled 

to holidays, and is eligible for salary increases 

during that period. If the employee does not 

return to work following leave without pay, the 

employee shall be paid for any accumulated 

vacation leave at time of separation. (Reference: 

25 NCAC IE .0200, Vacation Leave). 

(c) While on leave without pay the employee 
may continue coverage under the state's health 
insurance program by paying the full premium cost 
(no contribution by the state). 

Statutory Authority G.S. 126-4. 

.1110 SPECIAL PROV/PARENTAL 
LEAVE/EMPLO'^TES NOT 
ELGBLE/FAJVULY/MED LEAVE 

(a) The natural parents of a newborn infant and 
the parents of a newly-adopted child under five 
years of age may request leave without pay under 
provisions of this policy Subchapter . The natural 
mother may use accumulated sick leave for the 
actual period of temporary disability caused or 
contributed to by pregnancy and childbirth; see 
"Uses of Sick Leave" in Rule .0305 of this 
Subchapter. 

(b) The agency head shall grant leave without 
pay to the natural mother for all of the time of 
personal disability not covered by sick leave 
(either because the employee has exhausted all sick 
leave or prefers to retain it). Since there is no 
certainty as to when disability actually begins and 
ends, a doctor's certificate shall be required 
verifying, on a prescribed form, the employee's 
period of temporary disability. Limitation of 



employment — b e fore — childbirth 



prohibited; 



therefore, based on the type and nature of work 
performed each agency s hall be re s pon s ible for 
determining, in consultation with the employee and 
upon advice she has received from her phy s ician, 
how far into pregnancy s he may continue to work 
before going on leave and when she is able to 
return to work. 

(c) The natural mother may desire to be on 
leave from work prior to and/or after the time of 
actual disability. Leave without pay may be 
granted for this purpose under the provisions of 



979 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



this policy Subchapter . 

(d) Leave without pay for the parent of an 
adopted child can begin no earlier than one week 
prior to the date the parent receives custody of the 
child. 

Statutory Authority G.S. 126-4. 

SECTION .1300 - VOLUNTARY SHARED 
LEAVE PROGRAM 

. 1306 LEAVE ACCOUNTING PROCEDURES 

The following conditions shall control the 
accounting and usage procedures for leave 
donations in this program: 

(1) To facilitate the administration of the 
program, the agency may establish a 
specific time period during which leave 
can be donated. 

(2) Each agency shall establish a system of 
leave accountability which will accurately 
record leave donations and recipients' 
use. Such accounts shall provide a clear 
and accurate record for financial and 
management audit purposes. 

(3) Withdrawals from recipient's leave 
account will be charged to the recipient's 
account according to usual leave policies. 

(4) Leave transferred under this program will 
be available for use on a current basis or 
may be retroactive for up to 30 calendar 
days to substitute for leave without pay 
or advanced vacation or sick leave 
already granted to the leave recipient. 

(5) At the expiration of the medical 
condition, as determined by the agency, 
any unused leave in the recipient's 
donated leave account shall be treated as 
follows: 

(a) The vacation and sick leave account 
balance shall not exceed a combined 
total of 40 hours (prorated for part-time 
employees). 

(b) Any additional unused donated leave 
will be returned to the donor(s) on a 
pro rata basis and credited to the leave 
account from which it was donated. 
Fraction(s) of one hour shall not be 
returned to an individual donor. 

(c) Each approved medical condition shall 
stand alone and donated leave not used 
for each approved incident shall be 
returned to the donor(s). Employees 
who donate "excess" leave (any amount 
above the 240 maximum allowable 



carryover) at the end of December may 

not have it returned and converted to 

sick leave. Their prorated share will be 

lost the same as it would have been at 

the end of December. 

(6) If a recipient separates from state 

government, participation in the program 

ends. Donated leave shall be returned to 

the donor(s) on a pro rata basis. 

Statutory Authority G.S. 126-4. 

SECTION .1400 - FAMILY AND MEDICAL 
LEAVE 

.1402 ELIGIBLE EMPLOYEES 

(a) Permanent Employees - An employee who 
has been employed with State government for at 
least 12 months and who has worked at least 1040 
hours (half-time) during the previous 12 month 
period is entitled to a total of 12 workweeks, paid 
or unpaid, leave during any 12-month period for 
one or more of the reasons listed in this 
Paragraph . A workweek i s defined as the number 
of hours an employee is regularly scheduled to 
work — eaeh — week. The 12-month period is 
computed by counting back 12 months from the 
date the leave begins. 

(1) For the birth of a child and to care for 
the child after birth, provided the leave 
is taken within a 12-month period 
following birth; 

(2) For the employee to care for a child 
placed with the employee for adoption, 
provided the leave is taken within a 12- 
month period following adoption; 

(3) For the employee to care for the 
employee's child, spouse, or parent, 
where that child, spouse, or parent has 
a serious health condition; or 

(4) Because the employee has a serious 
health condition that makes the 
employee unable to perform the 
functions of the employee's position. 

Leave without pay beyond the 12-week period or 
for employees not covered under this Section will 
be administered under 25 NCAC IE .1100 Other 
Leaves Without Pay. Under these provisions, 
employees must pay for health benefits coverage. 

(b) Temporary Employees - This Section does 
not cover temporary employees since the 
maximum length of a temporary appointment is 
one year; however, if, by exception, a temporary 
employee is extended beyond one year, the 
employee would be covered if they had worked at 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



980 



PROPOSED RULES 



least 1250 hours during the past 12-month period. 
Any leave granted to a temporary employee would 
be without pay. This also applies to any other 
type of appointment that is not permanent, 
including intermittent, if the employee worked at 
least 1250 hours during the previous 12-month 
period. 

Statutory Authority G.S. 126-4(5): P. L. 103-3. 

.1403 DEFEVITIONS 

(a) Parent - a biological or adoptive parent or an 
individual who stood in loco parentis (a person 
who is in the position or place of a parent) to an 
employee when the employee was a child. 

(b) Child - is a son or daughter who is under 18 
years of age or is 18 years of age or older and 
incapable of self-care because of a mental or 
physical disability who is: 

(1) a biological child; 

(2) an adopted child; 

(3) a foster child - a child for whom the 
employee performs the duties of a 
parent as if it were the employee's 
child; 

(4) a step-child - a child of the employee's 
spouse from a former marriage; 

(5) a legal ward - a minor child placed by 
the court under the care of a guardian; 

(6) a child of an employee standing in loco 
parentis. 

(c) Spouse - a husband or wife. 

(d) Serious health condition^ 

(1) an illness, injury, impairment, or 
physical or mental condition that 
involves either inpatient care in a 
hospital, hospice, or residential medical 
care facility, or that involves continuing 
treatment by a health care providerv^ 

(2) any period of incapacity requiring 
absence from work of more than three 
calendar days that also involves 
continuing treatment by a health care 
provider; 

(3) continuing treatment by a health care 
provider for conditions so serious that, 
if not treated, would likely result in an 
absence of more than three calendar 
days. Prenatal care is also included. 
The period of actual physical disability 
associated with childbirth is considered 
a serious health condition and must be 
taken as family/medical leave, whether 
as paid or unpaid leave. 

(e) Workweek ; The number of hours an 



employee is regularly scheduled to work each 
week. 

(f) Reduced Work Schedule ; A work schedule 
involving less hours than an employee is normally 
scheduled to work. 

(g) Intermittent Work Schedule ; A work 
schedule in which an employee works on an 
irregular basis and is taking leave in separate 
blocks of time, rather than for one continuous 
period of time, usually to accommodate some form 
of regularly scheduled medical treatment. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1404 LEAVE CHARGES 

(a) It is the responsibility of the agency to 
designate leave, paid or unpaid, as family and 
medical leave, based on information provided by 
the employee. This must be done before the leave 
starts, or before an extension of leave js granted if 
the employee is already on leave. If an employee 
on paid leave has not provided information 
sufficient to determine whether it is to be 
designated as family and medical leave, the agency 
shall, after a period of JO workdays, request that 
the employee provide sufficient information to 
establish a family and medical leave-qualifying 
reason for the needed leave. TTiis does not 
preclude the agency from requesting the 
information sooner, at any time an extension is 
requested. If an employee takes paid leave and it 
is not designated as family and medical leave, the 
leave taken does not count against the employee's 
entitlement. The employee has the following 
options for charging leave: 

(1) fa) For the birth of a child, the 
employee may choose to exhaust 
available vacation or sick leave, or any 
portion, or go on leave without pay; 
except that sick leave may be used 
during the period of disability. This 
applies to both parents. 

(2) (b) For the adoption of a child, the 
employee may choose to exhaust 
vacation leave, or any portion, or go on 
leave without pay. 

(3) (e) For the illness of an employee's 
child, spouse, or parent, the employee 
may choose to exhaust available sick or 
vacation leave, or any portion, or go on 
leave without pay. 

(4) (4) For the employee's illness, the 
employee shall exhaust available sick 
and may choose to exhaust available 
vacation leave, or any portion, before 



981 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



PROPOSED RULES 



going on leave without pay. If the 

illness extends beyond the 60-day 

waiting period required for short-term 

disability, the employee may choose to 

exhaust the balance of available leave 

or begin drawing short-term disability 

benefits. 

(b) (e) Periods of paid leave and periods of 

leave without pay (including leave without pay 

while drawing short-term disability benefits) count 

towards the 12 workweeks to which the employee 

is entitled. This includes leave taken under the 

Voluntary Shared Leave Rules (25 NCAC IE 

.1300). 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1405 INTERMITTENT LEAVE OR 
REDUCED WORK SCHEDULE 

(a) The employee may not take leave 
intermittently or on a reduced work schedule for 
child birth and birth related child care or for 
adoption unless the employee and agency agree 
otherwise. 

(b) When medically necessary, the employee 
may take leave intermittently or on a reduced 
schedule to care for the employee's child, spouse, 
or parent who has a serious health condition, or 
because the employee has a serious health 
condition. TTiere is no minimum limitation on the 
amount of leave taken intermittently. If such leave 
is foreseeable, based on planned medical 
treatment, the agency may require the employee to 
transfer temporarily to an available alternative 
position for which the employee is qualified and 
that has equivalent pay and benefits and better 
accommodates recurring periods of leave. 

fe) — When an employee i s on a reduced work 
schedule, the time not worked is counted against 
the total 12 workweek s . 

(c) Only the time actually taken as leave may be 
counted toward the 12 weeks of leave to which the 
employee is entitled when leave is taken 
intermittently or on a reduced leave schedule. If 
the employee works a reduced or intermittent work 
schedule and does not use paid leave to make up 
the difference between the normal work schedule 
and the new temporary schedule to bring the 
number of hours worked up to the regular 
schedule, the agency must submit a Form PD-105 
showing a change in the number of hours the 
employee is scheduled to work. This will result in 
an employee earning leave at a reduced rate. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 



.1406 EMPLOYEE RESPONSIBILITY 

(a) The employee shall apply in writing give 
notice to the supervisor for leave requested under 
this Section^ as — follows: The employee must 
explain the reasons for the needed leave so as to 
allow the agency to determine that the leave 
qualifies under this Section. 

(1) Birth or adoption - The employee shall 
give the agency no less than 30 days' 
notice, in writing, of the intention to 
take leave, subject to the actual date of 
the birth or adoption. If the date of the 
birth or adoption requires leave to 
begin in less than 30 days, the employ- 
ee shall provide such notice as is practi- 
cable. 

(2) Planned Medical Treatment - When the 
necessity for leave is to care for the 
employee's child, spouse or parent or 
because the employee has a serious 
health condition, the employee must 
give 30 day's notice if practicable of 
the intention to take leave. 

{b) — The employee shall be deemed to have 
applied for leave under thi s Section when: 

^4-) the employee i s on approved leave but 

has not given written notice to the 
supervisor; 

(3^ the e mployee utilize s — leave — for any 

purpose whether with or without pay 
for a period in excess of 30 day s ; and 

f3) the basis for the leave falls within the 

scope of thi s Section. 
In these cases, the agency shall notify the employ 
cc that time spent on paid l eave or leave without 
pay during the 30 day period is a part of the 12 
workweeks of leave. 

£b} fe) If the employee will not return to work, 
the agency shall be notified in writing. Failure to 
report at the expiration of the leave, unless an 
extension has been requested, may be considered 
as a resignation. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 

.1408 EMPLOYMENT AND BENEFITS 
PROTECTION 

(a) Reinstatement - The employee shall be 
reinstated to the same position held when the leave 
began or one of like pay grade, pay, benefits, and 
other conditions of employment. The agency may 
require the employee to report at reasonable 
intervals to the employer on the employee's status 
and intention to return to work. The agency also 
may require that the employee receive certification 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



982 



PROPOSED RULES 



that the employee is able to return to work. 

(b) Benefits - Tlie employee shall be reinstated 
without loss of benefits accrued when the leave 
began. All benefits accrue during any period of 
paid leave; however, no benefits will be accrued 
during any period of leave without pay. 

(c) Health Benefits - TTie State shall maintain 
coverage for the employee under the State's group 
health plan for the duration of leave at the level 
and under the conditions coverage would have 
been provided if the employee had continued 
employment. Any share of health plan premiums 
which an employee had paid prior to leave must 
continue to be paid by the employee during the 
leave period. The obligation to maintain health 
insurance coverage stops if an employee's premi- 
um payment is more than 30 days late. If the 
employee's failure to make the premium payments 
leads to a lapse in coverage, the employer must 
still restore the employee, upo n return to work, to 
the health coverage equivalent to that the employee 
would have had if leave had not been taken and 
the premium payments had not been missed. In 
this situation, an employee may not be required to 
meet qualification requirements imposed by the 
plan, to wait for open season or to pass a medical 
examination to obtain reinstatement of coverage. 
The agency may recover the premiums if the 
employee fails to return after the period of leave to 
which the employee is entitled has expired for a 
reason other than the continuation, recurrence, or 
onset of a serious health condition or other circum- 
stances beyond the employee's control. 

Statutory Authority G.S. 126-4(5); P. L. 103-3. 



983 8:11 NORTH CAROLINA REGISTER September 1, 1993 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

; NCAC 39 .0101 - Purpose 

No Response from Agency 
1 NCAC 39 .0301 - Exceptions to Minimum Criteria 

No Response from Agency 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management 

15A NCAC 2H .1110 - Implementation 
Agency Responded 
Agency Responded 
Agency Responded 
Agency Responded 

LICENSING BOARDS AND COMMISSIONS 

Landscape Architects 

21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards 

Agency Repealed Rule 
21 NCAC 26 .0205 - Forms of Practice 

Rule Returned to Agency 
21 NCAC 26 .0207 - Application of Professional Seal 

Rule Returned to Agency 
21 NCAC 26 .0208 - Improper Conduct 

Rule Returned to Agency 
21 NCAC 26 .0209 - Unprofessional Conduct 

Agency Revised Rule 
21 NCAC 26 .0210 - Dishonest Practice 

Agency Revised Rule 
21 NCAC 26 .0211 - Incompetence 

Agency Revised Rule 
21 NCAC 26 .0301 - Examination 

Agency Revised Rule 

Social Work 

21 NCAC 63 .0210 - Provisional Certificates 
Agency Revised Rule 



RRC Objection 06/1 7/93 

Obj. Cont'd 07/15/93 

RRC Objection 06/17/93 

Obj. Cont'd 07/15/93 



RRC 


Objection 


02/18/93 


Obj. 


Cont 'd 


03/18/93 


Obj. 


Cont 'd 


05/19/93 


Obj. 


Cont'd 


06/17/93 


Obj. 


Cont 'd 


07/15/93 



RRC Objection 


06/17/93 


Obj. Removed 


06/1 7/93 


RRC Objection 


06/17/93 




07/15/93 


RRC Objection 


06/17/93 




07/15/93 


RRC Objection 


06/17/93 




07/15/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/15/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/15/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/15/93 


RRC Objection 


06/17/93 


Obj. Removed 


07/15/93 



RRC Objection 
RRC Objection 



08/20/93 
08/20/93 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



984 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Stauff'er Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIEIVT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

10 NCAC 3R .1124(0 - ACCESSIBILITY TO SERVICES 

Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3R .1124(f) void as applied in Britthaven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C 
Department of Human Resources, Division of Facility Services, Certificate of Need Section, Respondent and 
Valdese Nursing Home, Inc., Respondent-Intervenor (92 DHR 1785). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IIL Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries. Respondent (92 EHR 0820). 

ISA NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbitt Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment , Health, and Natural Resources, Respondents (91 EHR 0818). 



985 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

LMS Express, Inc. v. Administration. Div of Purchase & Contract 
Stauffer Information Systems v. Community Colleges & Administration 
McLaurin Parking Co. v. Administration 
Warren H. Arrington Jr. v. Division of Purchase & Contract 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DOA 0735 
92 DOA 0803 

92 DOA 1662 

93 DOA 0132 



Morgan 06/04/93 

West 06/10/93 

Morrison 04/02/93 

West 07/21/93 



8:7 NCR 613 
8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 

Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Ezra Everett Rigsbee 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Johmiic L. Baker v. Alcoholic Beverage Control Commission 

RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm 

Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 

Alcoholic Beverage Control Comm. v. 

Alcoholic Beverage Control Comm. v. 

Cornelius Hines T/A Ebony Lounge v 

Alcoholic Beverage Control Comm. v. 

Alcoholic Beverage Control Comm. v. Wanda Lou Ball 

Charles Anthonious Morant v. Alcoholic Beverage Control Comm. 

ABC Comm. v. Partnership/T/A Corrothers Comty Ctr & Private Club 

Alcoholic Beverage Control Comm. v. James William Campbell 

Charles Edward Hare, Club Paradise v. Alcoholic Beverage Ctl. Comm 

Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz 



Partnership, Phillip Owen Edward 
Gary Morgan Neugent 
Kirby Ronald Eldridge 
Gloria Black McDuffie 
Larry Isacc Hailstock 
Anthony Ralph Cecchini Jr. 



Mermaid, Inc. 
Majdi Khalid Wahdan 
. Alcoholic Beverage Ctl- Comm. 
Homer Patrick Godwin Jr. 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0702 


West 


07/30/93 


92 ABC 0978 


Gray 


05/28/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


Reilly 


04/07/93 


92 ABC 1690 


Morgan 


06/29/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0002 


Morrison 


07/02/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0076 


Gray 


08/04/93 


93 ABC 0087 


Becton 


07/06/93 


93 ABC 0118 


Morrison 


08/04/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 0182 


Nesnow 


07/29/93 


93 ABC 0232 


Chess 


07/20/93 


93 ABC 0318 


Reilly 


07/22/93 


93 ABC 0327 


Gray 


08/09/93 


93 ABC 0644 


Gray 


08/10/93 


93 ABC 1475 


Nesnow 


03/23/93 



8:9 NCR 785 



COMMERCE 

Lester Moore v. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



93 COM 0105 Gray 



03/08/93 



George W. Paylor v. Crime Victims Compensation Comm. 
Steven A. Bamer v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Norman E. Brown v. Victims Compensation Commission 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
David & Jane Spano v. Crime Control & Public Safely 
Phillip Edward Moore v. Crime Control & Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 



91 CPS 1286 


Morgan 


04/27/93 




92 CPS 0453 


Nesnow 


06/01/93 




92 CPS 0937 


Chess 


03/01/93 




92 CPS 1195 


Reilly 


03/19/93 




92 CPS 1787 


Reilly 


03/26/93 




92 CPS 1807 


Morrison 


05/24/93 




93 CPS 0034 


Gray 


05/05/93 




93 CPS 0141 


West 


07/07/93 




93 CPS 0152 


Nesnow 


04/02/93 


8:3 NCR 327 


93 CPS 0160 


Nesnow 


07/30/93 


8:10 NCR 862 


93 CPS 0169 


Nesnow 


05/20/93 




93 CPS 0263 


Morrison 


05/20/93 




93 CPS 0303 


Morrison 


06/08/93 




93 CPS 0351 


Reilly 


05/24/93 





8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



986 



CONTESTED CASE DECISIONS 



AGENCY 



ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 

Charles L. Wilson v. Environment, Health. & Natural Resources 
J. Bruce Mulligan v. Environment, Health, & Natrual Resources 
Michael D. Barnes v. Onslow Cty Hlth & Environment and EHR 
William E. Finck v. Environment. Health, & Natural Resources 
Utlcy C. Stallingsv. Environment. Health. & Natural Resources 
Safeway Removal, Inc. v. Environment. Health. & Natural Res. 
Elizabeth City /Pasquotank Cty Mun Airport Auth v. EHNR 
Interstate Brands Corp & Donald Leffew v. Env., Health. &. Nat. Res. 
Service Oil Company v. Environment, Health. & Natural Resources 
Interstate Brands Corp & Donald Leffew v. Env., Health. & Nat. Res. 
City of Salisbury v. Environment. Health. & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors. Inc. v. EHNR 
Shawqi A. laber v. Environment. Health. & Natural Resources 
Angela Power. Albert Power v. Children's Special Health Svcs. 
Erby Lamar Grainger v. Environment, Health, &. Natural Resources 
Mustafa E. Essa v. Environment, Health, & Natural Resources 
Charlie Garfield McPherson Swine Farm v, Env., Health, & Nat. Res. 
Rosetta Brimage. Vanessa Pack v. Env. Health of Craven County 
R.L. Stowe Mills. Inc. v. Environment. Health, & Natural Resources 
O.C. Slafford/Larry Haney v. Montgomery Cty. Health Dept. 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment. Health. & Natural Resources 
Fred C. Gosnell & wife, Patricia T, Gosnell v. Env., Health, & Nat. Res. 
Holding Bros.. Inc. v. Environment, Health. & Natural Resources 
Hamilton Beach/Proctor-Silex.Inc. v. Environment, Health, &, Natrl Res 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



91 EHR 0664 


Morgan 


03/23/93 




91 EHR 0773 


West 


07/13/93 




91 EHR 0825 


Morgan 


06/21/93 




92 EHR 0040 


Gray 


06/14/93 




92 EHR 0062 


Gray 


03/15/93 




92 EHR 0826 


West 


03/12/93 


8:1 NCR 83 


92 EHR 1140 


Gray 


04/13/93 




92 EHR 1201*" 


Reilly 


08/12/93 




92 EHR 1205 


Reilly 


05/27/93 




92 EHR 1224*" 


Reilly 


08/12/93 




92 EHR 1472 


Morrison 


04/22/93 




92 EHR 1600 


Chess 


03/24/93 




92 EHR 1660 


Reilly 


05/21/93 




92 EHR 1784 


Becton 


07/07/93 




93 EHR 0008 


Becton 


03/24/93 




93 EHR 0071 


Reilly 


06/21/93 




93 EHR 0146 


Gray 


03/29/93 




93 EHR 0181 


Reilly 


07/23/93 


8:10 NCR 870 


93 EHR 0206 


Nesnow 


05/20/93 




93 EHR 0219 


Morrison 


08/11/93 


8:11 NCR 996 


93 EHR 0224 


Gray 


06/07/93 




93 EHR 0299 


Reilly 


06/07/93 




93 EHR 0308 


Becton 


05/18/93 




93 EHR 0340 


Becton 


08/11/93 




93 EHR 0380 


Nesnow 


08/03/93 


8:11 NCR 1001 


93 EHR 0477 


Reilly 


06/29/93 





i 



HUMAN RESOURCES 

O.C. Williams v. Human Resources 

Ronald Terry Brown v. Human Resources 

Dennis K. King v. Human Resources 

O.C. Williams v. Human Resources 

Michael L. Ray v. Human Resources 

Randy Chambliss v. Human Resources 

Melvin WTiiie v. Human Resources 

Joseph R. Kavaliauskas Jr. v. Human Resources 

Jefferson D. Boylen v. Human Resources 

Jeffer>' D. Williams v. Human Resources 

Jerry L. Summers v. Human Resources 

Samuel E. Massenherg Jr. v. Human Resources 

William A. Di.xon v. Human Resources 

Gregorv' L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwayne Allen v. Human Resources 

Edwin Ivesler v. Human Resources 

Connie F. Epps. Otis Junior Epps v. Human Resources 

Tyrone Aiken v. Human Resources 

Everett M. Eaton v. Human Resources 

Edward E. Brandon v. Human Resources 

Darrell W. Russell v. Human Resources 

John Henry Byrd v. Human Resources 

Michelle D. Mobley v. Human Resources 

Gus W. Long Jr. v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Charles W. Stall Jr. v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Frank E- Johnson v. Human Resources 

David Rollins v. Human Resources 

Lyndell Greene v. Human Resources 



Consolidated cases. 



91 CSE 0036*- 


Morgan 


03/30/93 


91 CSE 0249 


Morgan 


05/17/93 


91 CSE 


1122 


Morgan 


07/28/93 


91 CSE 


1158*- 


Morgan 


03/30/93 


91 CSE 


1173 


Morgan 


05/17/93 


91 CSE 


1187 


Morgan 


04/28/93 


91 CSE 


1192 


Morgan 


05/17/93 


91 CSE 1204 


Morgan 


07/29/93 


91 CSE 1217 


Morgan 


05/17/93 


91 CSE 


1231 


Morgan 


04/28/93 


91 CSE 


1234 


Morgan 


07/28/93 


91 CSE 


1249 


Morgan 


05/17/93 


91 CSE 


1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 


1182 


Reilly 


07/22/93 


92 CSE 


1217 


Gray 


06/17/93 


92 CSE 


1221 


Reilly 


07/27/93 


92 CSE 


1237 


Gray 


04/16/93 


92 CSE 


1249 


Becton 


04/20/93 


92 CSE 


1250 


Reilly 


06/04/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1263 


Gray 


08/16/93 


92 CSE 


1265 


Reilly 


05/06/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 CSE 


1311 


Nesnow 


05/10/93 


92 CSE 


1313 


Mann 


07/06/93 


92 CSE 


1316*' 


Reilly 


03/25/93 


92 CSE 


1326 


Reilly 


08/16/93 


92 CSE 


1334 


Morrison 


05/06/93 


92 CSE 


1346 


Nesnow 


04/16/93 



i 



987 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Michael Anthony Dean v. Human Resources 
Leroy Snuggs v. Human Resources 
James P. Miller ID v. Human Resources 
Herbert H, Fordham v. Human Resources 
Jack Dulq v. Human Resources 
Larry L. Crowdcrv. Human Resources 
Carlos Bernard Davis v. Human Resources 
Ocie C. Williams v. Human Resources 
Terrance Freeman v. Human Resources 
Timothy Brian Eller v. Human Resources 
Charles S. Ferrer v. Human Resources 
Ronald H. Lockley v. Human Resources 
Rene Thomas Rittenhouse v. Human Resources 
Thomas Edward Williamson v. Human Resources 
Roy Chester Robinson v. Human Resources 
Timothy Scott Long v. Human Resources 
David W. Williams v. Human Resources 
William E. Ingram v. Human Resources 
Harold R. Pledger v. Human Resources 
Henry Alston Jr. v. Human Resources 
Michael W. Bentley v. Human Resources 
Dale Robert Stuhre v. Human Resources 
Tommy Malone v. Human Resources 
James C. Dixon Jr. v. Human Resources 
Wallace M. Cooper v. Human Resources 
Jarvis N. Price v. Human Resources 
Thomas L. Yates v. Human Resources 
Robert E. Tarlton Sr. v. Human Resources 
Rodney Devard Clemons v. Human Resources 
James A. Coleman v. Human Resources 
Romeo F. Skapple v. Human Resources 
Jeffrey L. Garrett v. Human Resources 
Edward Kirk v. Human Resources 
William C. Hubbard v. Human Resources 
William Michael Przybysz v. Human Resources 
Edward Fitch v. Human Resources 
David Robinettev. Human Resources 
Kit C. Elmore v. Human Resources 
Brian C. Gilmore v. Human Resources 
Philip S. Piercy v. Human Resources 
Anthony McLaughlin v. Human Resources 
Johnny W. Cooke v. Human Resources 
Roland L. Essaff v. Human Resources 
Isaac Maxwell v. Human Resources 
Donald J. Ray v. Human Resources 
Charles Wayne Pierce v. Human Resources 
Donna G. Knotts v. Human Resources 
Donald R. Williams v. Human Resources 
McKinley Clybum v. Human Resources 
Tony Thorpe v. Human Resources 
Jeffery D. Williams v. Human Resources 
Ronald Sowell v. Human Resources 
Billy Smith v. Human Resources 
Anthony Curry v. Human Resources 
John G. Williams v. Human Resources 
Larry W. Golden v. Human Resources 
William J. Carter v. Human Resources 
Mark W. Dean v. Human Resources 
Tyrone Thomas v. Human Resources 
Rihon E. May v. Human Resources 
Eric Stanley Stokes v. Human Resources 
Larry Thompson v. Human Resources 
Billie J. Smith v. Human Resources 
Patrick Floyd v. Human Resources 
Dennis W. Nolan v. Human Resources 
Eric L. Garland v. Human Resources 
Ira Alston Jr. v. Human Resources 
Ronald G. Boldenv. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92CSE 


1356 


Morrison 


08/13/93 


92CSE 


1360 


Morrison 


04/15/93 


92CSE 


1361 


Gray 


04/16/93 


92CSE 


1362 


Nesnow 


07/19/93 


92CSE 


1374 


Gray 


07/16/93 


92 CSE 


1396 


Reilly 


04/15/93 


92CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1405 


Mann 


06/25/93 


92 CSE 1411 


Mann 


06/07/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 


1416 


Mann 


04/15/93 


92 CSE 


1418 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 


92 CSE 


1423 


Reilly 


04/15/93 


92 CSE 


1445 


Becton 


06/29/93 


92 CSE 


1448 


Nesnow 


07/19/93 


92 CSE 


1450 


Reilly 


04/15/93 


92 CSE 


1455 


Morrison 


05/20/93 


92 CSE 


1460 


Becton 


06/29/93 


92 CSE 


1512 


Nesnow 


06/09/93 


92 CSE 


1516 


Reilly 


05/11/93 


92 CSE 


1520 


Mann 


05/07/93 


92 CSE 


1522 


Becton 


05/11/93 


92 CSE 1527 


Reilly 


05/11/93 


92 CSE 


1531 


Morrison 


05/12/93 


92 CSE 


1535 


Gray 


05/10/93 


92 CSE 


1536 


Gray 


05/17/93 


92 CSE 


1539 


Gray 


05/10/93 


92 CSE 


1540 


Reilly 


05/11/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1557 


Gray 


04/22/93 


92 CSE 


1560 


Gray 


06/29/93 


92 CSE 


1562 


Mann 


05/12/93 


92 CSE 


1565 


Becton 


07/23/93 


92 CSE 


1572 


Reilly 


05/11/93 


92 CSE 


1573 


Mann 


07/14/93 


92 CSE 


1575 


Gray 


07/16/93 


92 CSE 1576 


Gray 


04/26/93 


92 CSE 


1577 


Gray 


07/16/93 


92 CSE 


1582 


Gray 


06/29/93 


92 CSE 


1585 


Becton 


05/11/93 


92 CSE 


1588 


Morrison 


07/26/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 


1596 


Morrison 


07/14/93 


92 CSE 


1611 


Morrison 


07/16/93 


92 CSE 1622 


Nesnow 


08/04/93 


92 CSE 


1623 


Morrison 


05/20/93 


92 CSE 


1625 


Chess 


07/15/93 


92 CSE 


1626 


Mann 


05/19/93 


92 CSE 


1627 


Reilly 


07/19/93 


92 CSE 


1629 


Reilly 


03/25/93 


92 CSE 


1631 


Reilly 


03/25/93 


92 CSE 


1632 


Mann 


08/10/93 


92 CSE 


1633 


Reilly 


03/25/93 


92 CSE 


1637 


Nesnow 


05/19/93 


92 CSE 


1638 


Reilly 


07/15/93 


92 CSE 


1640 


Mann 


07/22/93 


92 CSE 


1642 


Morgan 


07/29/93 


92 CSE 


1652*' 


Reilly 


03/25/93 


92 CSE 


1655 


Reilly 


07/22/93 


92 CSE 1656 


Gray 


07/23/93 


92 CSE 


1663 


Reilly 


05/20/93 


92 CSE 1670 


Morrison 


06/25/93 


92 CSE 


1671 


Mann 


07/22/93 


92 CSE 


1703 


Becton 


06/16/93 


92 CSE 


1706 


Mann 


06/25/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



988 



CONTESTED CASE DECISIONS 



AGENCY 



Marvin Hoiley v. Human Resources 

Eddie Short v. Human Resources 

Michael Tywan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

Joseph Eric Lewis v. Human Resources 

Ronald Dean Lowery v. Human Resources 

James E. Blakney v. Human Resources 

Oswinn Blue v. Human Resources 

Kelvin D. Jackson v. Human Resources 

Linwood Slaton v. Human Resources 

Anthony Watson v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Lang ford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Karen Mullins Martin v. Human Resources 

Leon Barbee v. Human Resources 

Carrollon of Dunn, Inc. v. Human Resources 

Dialysis Care of North Carolina. Inc.. d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayctteville Kidney Center, 
Webb-Lohavichan-Melton Rentals. Bio-Medical Applications 
of North Carolina. Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center. 
Webb-Lohavichan-Melton Rentals. Bio-Medical Applications 
of North Carolina, Inc.. d/b/a BMA of Raeford and Wcbh- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina. Inc., d/b/a BMA 
of Raeford, Webb-Lohavichan-Melton Rentals. Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayetteville 
d/b/a Fayetteville Kidney Center and Webb-Lohavichan Rentals 
v. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount, Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates, Inc., Bio-Medical 
Applications of North Carolina. Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care. Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

The Neighborhood Center v. Human Resources 

Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

Cabarrus Cty Dept. of Social Svcs. v. Human Resources 

Fannie Lewis v. Human Resources 

Katie Kelly v. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92CSE 1713 


Mann 


06/08/93 


92 CSE 1714 


West 


07/15/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1748 


Becton 


08/02/93 


92 CSE 1771 


West 


07/15/93 


92 CSE 1779 


Nesnow 


05/13/93 


93 CSE 0073 


Chess 


08/03/93 


93 CSE 0221 


West 


08/04/93 


93 CSE 0250 


Nesnow 


08/13/93 


93 CSE 0396 


Nesnow 


08/04/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1181 


Gray 


05/04/93 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Reilly 


05/05/93 


92 DCS 1783 


West 


08/04/93 


92 DHR 0658 


Morrison 


04/30/93 


92DHR 1101 


Morgan 


07/26/93 


92 DHR 1109** 


Morgan 


06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



92 DHR 1110** Morgan 06/22/93 



92 DHR 1116** Morgan 06/22/93 



92 DHR 1 120 



Gray 



06/18/93 



i 



8:5 NCR 441 



!:4 NCR 392 
;-.8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



92 DHR 


1145 


Becton 


05/13/93 


8:5 


NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 


NCR 313 


92 DHR 


1275 


Gray 


03/15/93 






92 DHR 


1320 


Morgan 


05/21/93 






92 DHR 


1329 


Chess 


05/10/93 






92 DHR 


1375 


Chess 


08/02/93 






92 DHR 


1604 


Reilly 


05/10/93 






92 DHR 


1612 


Chess 


03/08/93 






92 DHR 


1613 


Chess 


03/08/93 






92 DHR 


1614 


Chess 


03/09/93 






92 DHR 


1699 


Reilly 


06/07/93 


8:7 


NCR 632 


93 DHR 0010 


Becton 


03/11/93 






93 DHR 0373 


Morgan 


07/20/93 






93 DHR 0379 


Gray 


06/28/93 






93 DHR 0441 


Chess 


07/26/93 







INSURANCE 

Carolyn M. Hair v. St Employees Comprehensive Major Medical 
Phyllis C. Harris v. Teachers' & St. Emp. Comp. Major Med. Plan 



92 INS 1464 

93 INS 0197 



Chess 
Nesnow 



03/10/93 
07/29/93 



{ 



989 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 

Jennings Michael Bostic v. Sheriffs' Ed. &. Traning Stds. Comm. 
Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm. 
Jennings Michael Bostic v. Sheriffs' Ed. & Traning Stds. Comm. 
Michael Charles Kershner v. Criminal Justice Ed & Training Stds Comm 
George Wilton Hawkins v. Criminal Justice Ed. tfe Training Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. &. Training Stds. Comm. 
Richard Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm. 
Shcrri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. &. Training Standards Commission 
George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm. 
Lonnie Allen Fox v. Sheriffs' Ed. &. Training Standards Commission 
Alarm Systems Licensing Bd. v. Eric Hoover 
Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 
William B. Lipscomb v. Private Protective Services Board 
Private Protective Svcs. Bd. v. Alan D. Simpson 

LABOR 

Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKiimey v. Labor 

MORTUARY SCIENCE 



92 DOJ 0656*' 


West 


06/22/93 


92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 0829*' 


West 


06/22/93 


92 DOJ 0869 


Morgan 


08/11/93 


92 DOJ 1081*' 


Morgan 


07/09/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0156*' 


Morgan 


07/09/93 


93 DOJ 0196 


Morrison 


08/09/93 


93 DOJ 0201 


Becton 


07/12/93 


93 DOJ 0202 


Chess 


05/10/93 


93 DOJ 0458 


Morrison 


06/01/93 


93 DOJ 0480 


West 


07/21/93 



92 DOL 0204 


Nesnow 


04/15/93 


92 DOL 1319 


Morgan 


06/17/93 


92 DOL 1333 


Morrison 


06/21/93 



Board of Mortuary Science v. Triangle Funeral Chapel. Inc. 
PUBLIC INSTRUCTION 



92 BMS 1169 



ReiUy 



04/29/93 



8:4 NCR 396 



Frances; F. Davis. Parent of Joseph E. Davis v. Public Instruction 
STATE PERSONNEL 



93 EDC 0628 



Mann 



07/29/93 



Frances K. Pate v. Transportation 

Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson. James D. Fishel v. Justice 
BemJe B. Kellly v. Correction 
Brenda G. Mitchell v. Correction 

Adolph Alexander Justice Jr. v. Motor Vehicles. Transportation 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. While v. Correction 

Gregory Samuel Parker v. Environment. Health. & Natural Resources 
Renee E. Shepherd v. Winston-Salem State University 
Eva Dockery v. Human Resources 

Lee P. Crosby v. Michael Kelly. William Meyer and EHR 
Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health, &. Natural Resources 
James B. Price v. Transportation 
I. Cary Naillingv. UNC-CH 
Deborah Barber V. Correction 
Laveme B. Hill v. Transportation 
Jimmy D. Wilklnsv. Transportation 

Sarah W. Britt v. Human Resources, C.A. Dillon School, CPS 
Charles Robinson v. Revenue 

Anna L. Spencer v. Mecklenburg County Area Mental Health 
Herman James Goldstein v. UNC-Chape! Hill el al. 



88 OSP 0340 


Morrison 


05/03/93 


90 OSP 1064** 


Mann 


05/04/93 


90 OSP 1065** 


Mann 


05/04/93 


90 OSP 1066** 


Mann 


05/04/93 


90 OSP 1067*' 


Mann 


05/04/93 


90 OSP 1068** 


Mann 


05/04/93 


91 OSP 0344 


Morrison 


05/27/93 


91 OSP 0625 


West 


03/08/93 


91 OSP 0860 


Chess 


07/19/93 


91 OSP 0941 


West 


04/02/93 


91 OSP 0951 


West 


05/07/93 


91 OSP 1236 


Morgan 


04/05/93 


91 OSP 1344*' 


Chess 


05/20/93 


91 OSP 1391 


Morgan 


04/28/93 


92 OSP 0010 


Chess 


05/03/93 


92 OSP 0056 


Gray 


06/07/93 


92 OSP 0188*' 


Chess 


05/20/93 


92 OSP 0285 


Morrison 


03/10/93 


92 OSP 0313 


Becton 


04/12/93 


92 OSP 0375 


Gray 


04/13/93 


92 OSP 0394 


Becton 


04/20/93 


92 OSP 0396 


Chess 


03/04/93 


92 OSP 0431*1 


West 


03/08/93 


92 OSP 0432*' 


West 


03/08/93 


92 OSP 0455 


West 


05/26/93 


92 OSP 0553 


Morgan 


07/21/93 


92 OSP 0584 


Becton 


08/16/93 


92 OSP 0634 


Morrison 


05/04/93 



;:1 NCR 75 
1:3 NCR 306 



8:4 NCR 382 



8:6 NCR 484 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



990 



CONTESTED CASE DECISIONS 



AGENCY 



Glinda C. Smith v. Wildlife Resources Commission 

Cindy G. Bartlett v. Correction 

William Kenneth Smith Jr. v. Broughlon Hospital (Human Resources) 

Larry O. Nobles v. Human Resources 

Beatrice Wheless v. Lise M. Miller. University Payroll Off., NC St. Univ. 

Sondra Williams v. Winston-Salem State University 

Willie TTiomas Hope v. Transportation 

David Scales v. Correction 

Suzanne Ransley Hill v. Environment, Health. &. Nat. Res. 

Herman James Goldstein v. UNC-Chapel Hill et al. 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 

John B. Sauls v. Wake County Health Department 

Gilbert Jaeger v. Wake County Alcoholism Treatment Center 

Joseph Henry Bishop v. Environment, Health. &. Natural Res. 

Glenn D. Fuqua v. Rockingham County Board of Social Services 

Willie L. Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment, Health, &. Natural Resources 

James B. Price v. Transportation 

Jerry L. Jones v. N.C.S.U. Physical Plant 

Betty Bradsherv. UNC-CH 

Jamai Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v, Correction, Division of Prisons 

Slevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 

Karen Canter v. Appalachian State University 

Terry Steve Brown v. Iredell County Health Department 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 

William G. Fisher v. St Bd of Ed, Albermarie City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 

Brian Dale Bamhardtv. State Highway Patrol 

F.R. "Don" Bowcn v. Human Resources 

Michael L. Pegram v. Correction 

Jerry D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Corre^;tion 

Michael L. Pegram v. Correction 

Hubert L. Holmes v. Transportation 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 OSP 0653 


Morrison 


03/12/93 


92 OSP 0671 


Morgan 


06/08/93 


92 OSP 0684 


Becton 


05/10/93 


92 OSP 0732 


Mann 


04/23/93 


92 OSP 0744*'° 


Morgan 


07/16/93 


92 OSP 0847 


Morrison 


08/06/93 


92 OSP 0947 


Morgan 


03/23/93 


92 OSP 0989 


Chess 


06/24/93 


92 OSP 0992 


Reilly 


03/18/93 


92 OSP 


1047 


Morrison 


05/04/93 


92 OSP 1124*'° 


Morgan 


07/16/93 


92 OSP 


1142 


Reilly 


03/08/93 


92 OSP 


1204 


Reilly 


05/10/93 


92 OSP 


1243 


Reilly 


03/05/93 


92 OSP 


1318 


Morrison 


08/03/93 


92 OSP 


1468 


Becton 


05/26/93 


92 OSP 


1505 


Morrison 


03/17/93 


92 OSP 


1555 


Becton 


05/31/93 


92 OSP 


1657 


Mann 


03/19/93 


92 OSP 


1661 


Chess 


07/06/93 


92 OSP 


1733 


Becton 


03/30/93 


92 OSP 


1741 


Becton 


03/24/93 


92 OSP 


1768 


Morrison 


03/17/93 


92 OSP 


1774 


Gray 


04/26/93 


92 OSP 


1789 


Becton 


04/19/93 


92 OSP 


1796 


Morrison 


05/27/93 


93 OSP 0079 


Reilly 


06/15/93 


93 OSP 0101 


Morgan 


08/06/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Becton 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Becton 


04/20/93 


93 OSP 0153 


Morgan 


06/03/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 0251 


Reilly 


07/27/93 


93 OSP 0253 


Morgan 


08/06/93 


93 OSP 0275** 


Reilly 


06/28/93 


93 OSP 0287 


Gray 


05/17/93 


93 OSP 0383 


Ncsnow 


06/07/93 


93 OSP 0472** 


Reilly 


06/28/93 


93 OSP 0572 


Reilly 


08/17/93 



PUBLISHED DECISION 
REGISTER CITATION 



i 



8:2 NCR 224 



8:1 NCR 88 



i 



STATE TREASURER 



Herman D. Brooks v. Bd of Trustees /Teachers' & St Emp Ret Sys 
Henrietta Sandlin v. Teachers' & Slate Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd/Trustees/Teachers' & St Emp Ret Sys 
W. Rex Perry v. Bd/Trustees/Teachers" & St Emp Ret Sys 



91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 


93 DST 0133 


West 


08/12/93 



8:11 NCR 992 



TRANSPORTATION 



Yates Construction Co., Inc. v. Transportation 
UNTVERSITY OF NORTH CAROLINA HOSPITALS 



92 DOT 1800 Morgan 



03/25/93 



Constance V. Graham v. UNC Hospital 
Jacqueline Florence v. UNC Hospitals 



93 UNC 0269 
93 UNC 0355 



Morgan 
Becton 



07/20/93 
06/16/93 



i 



991 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF NASH 



IN THE OFFICE OF 

ADMINISTRATrVE HEARINGS 

93 DST 0133 



W. REX PERRY, ADMINISTRATOR OF THE 
ESTATE OF LEE E. PERRY, DECEASED 
Petitioner, 



THE BOARD OF TRUSTEES OF THE TEACHERS' 
AND STATE EMPLOYEES' RETIREMENT 
SYSTEM, 

Respondent. 



RECOMMENDED DECISION 



This contested case was heard on July 12, 1993, in Raleigh, North Carolina, by Administrative Law 
Judge Thomas R. West. 

APPEARANCES 

Petitioner, the Estate of Lee E. Perry, was represented by the Administrator, W. Rex Perry 
Respondent was represented by Assistant Attorney General, Alexander McC. Peters 

WTTNESSES 
The following testified for Petitioner: 

W. Rex Perry - Brother of Lee E. Perry 

Mickie Holland - Sister of Lee E. Perry 

Alice Perry - Wife of W. Rex Perry 

The following testified for Respondent: 



Timothy S. Bryan 



Chief, Member Services Section, Retirement Systems Division, 
Department of State Treasurer 



OFTICIAL NOTICE 

Official notice is taken of G.S. 135-5(f) 

BURDEN OF PROOF 

The burden is on Petitioner to show by the greater weight of the evidence that Respondent has 
improperly refused to pay interest accrued since the death of Lee E. Perry on the return of his contributions 
to the Retirement System. 

FINDINGS OF FACT 

1. Lee E. Perry was a permanent employee of the North Carolina Department of Transportation. As 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



992 



CONTESTED CASE DECISIONS 



a result of the employment. Perry became a vested member of the Teachers' and State Employees' Retirement 
System. Perry named his father as the beneficiary of his account. 

2. Lee Perry died on December 25, 1988. Lee Perry had not been employed by the State of North 
Carolina for several years prior to his death. 

3. At the time of his death, Lee E. Perry had not retired. 

4. Delton Perry, Lee Perry's brother, preceded W. Rex Perry as the Administrator of Lee Perry's estate. 
Deltoo Perry was deceased at the time of this contested case. 

5. G.S. 135-5(f) provides that when the Board of Trustees of the Retirement System receives satisfactory 
proof that a member has died prior to retirement, the amount of the member's accumulated contributions at 
the time of his death shall be paid. 

6. The proof of death required by the Board of Trustees is a Certificate of Death. TTiis is not set forth 
in any statute or publication cited to the judge. 

7. On August 26, 1992, the Retirement System sent a letter to Lee Perry's father informing him that Lee 
Perry's account had $6,563.40 in it. The letter was generated because of a systematic review of inactive 
accounts which revealed to the System that Lee Perry had died. At the time the System wrote that the account 
had $6,563.40 in it. the System was aware Lee Perry was deceased and aware that it had no proof of that 
death on file. 

8. Lee Perry's father had been deceased for several years prior to Lee Perry's death. W. Rex Perry, 
Lee Perry's brother, qualified as the Administrator of Lee Perry's estate and made a claim in October 1992 
for the money in Lee Perry's retirement account. 

9. A dispute arose between the parties during October 1992 about the amount to be paid to the Estate 
of Lee Perry. The estate contended that the sum of $6,563.40 was due the estate. The Retirement System 
took the position that $728.56 should be deducted from the sum because it represented interest earned after 
Lee Peny's death. 

10. The System wrote the estate on November 18, 1992, taking the position that only the amount of 
accumulated contributions at the time of Lee Perry's death were payable and that law did not provide for the 
payment of any additional interest after the death of the member. 

11. The Estate of Lee Perry filed the petition which initiated this contested case on January 26, 19993. 

12. At the hearing, witnesses for the Estate testified as follows: 

a. On a Friday afternoon in January 1989, Delton Perry, Rex Perry and Alice Perry telephoned 
the Retirement System to check the status of Lee Perry's account. 

b. Alice, Rex Perry's wife, looked up the phone number for the System in the blue colored 
State Government pages of the Raleigh phone book. Rex dialed the number and then handed 
the phone to Delton. 

c. Alice and Rex were present while Delton spoke on the phone. As a result of the conversa- 
tion, the three understood that Lee had withdrawn his account and that there was no money. 

d. In 1992, after Rex came into possession of the System's letter of August 26, 1992, Rex spoke 
by telephone with Patricia Painter, an employee of the Retirement Systems Division of the 
Department of State Treasurer. Painter told Rex Perry that the Retirement Systems Division 
moves records off of computer onto microfilm after two years. Rex Perry concluded that in 



993 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



January 1989, when he, his wife, and Delton called the System, the person with whom they 
spoke checked a computer record and found no account for Lee since it had been inactive for 
several years and did not check the microfilm records. 

The Perrys have recently telephoned the same number they got from the phone book in 1989 
and have, both times, reached the System. 

13. Timothy S. Bryan is the Chief of the Member Services Section of the Retirement Systems Division 
of the Department of State Treasurer. 

14. Bryan testified as follows: 

a. As members' accounts are withdrawn from the System, the record of the account is put on 
microfilm; 

b. Computer files at the System show accounts as "open", "withdrawn" or "retired"; 

c. The files on computer at the System should be the same as the files on microfilm and 
microfiche; 

d. The systematic review of accounts described in Finding of Fact #7 above involved the 
comparison of account numbers against the social security numbers of deceased persons. It 
was in this way that the System learned Lee Perry was deceased. 

e. The letter would not have been generated if Lee Perry's file had shown his account as 
"withdrawn." 

15. The System has not paid to Lee Perry's estate interest earned on Lee Perry's account after the date 
of his death (December 25, 1988). The System relies on G.S. 135-5(f) and believes it is not empowered to 
pay interest earned on the account after Lee Perry's death. 

16. Bryan offered to settle this contested case by paying interest earned after Lee Perry's death if the 
estate could produce phone records showing a call to the System in 1989. The Perry's did not keep long 
distance phone records for calls made three years earlier. 

17. The System would pay interest at 4% per annum on the contribution accumulated at Lee Perry's death 
if it were adjudged that the System informed the Estate in January 1989 that Lee Perry's retirement account 
had been withdrawn. 

Based on the foregoing, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The testimony of the witnesses for the Estate is credible. Based on the judge's observation of the 
witnesses on the stand and in the hearing room, the undersigned concludes they would not spend one minute 
in litigation for money they did not believe they were owed, 

2. Mr. Bryan is a credible witness. 

3. Mr. Bryan's testimony of the manner in which the System's records are kept precludes a conclusion 
that the Perrys were given incorrect information as the result of any systemic flaw. The judge can conclude 
that the Perrys were told Lee Perry's account was "withdrawn" when, in fact, it was "open" only if the 
incorrect information was given by human error. 

4. There is no evidence of who would have made the error or how. 



8:11 NORTH CAROLINA REGISTER September 1, 1993 994 



CONTESTED CASE DECISIONS 



5. The Estate has not shown by the greater weight of the evidence that the System misled the estate to 

the Estate's detriment. 

Based on the foregoing, the undersigned makes the following 

RECOMMENDED DECISION 

The Board of the Teachers' and State Employees' Retirement System should pay interest at its 
standard rate from and after the death of Lee Perry on amounts contributed by him. 

G.S. 135-5(f) does not specifically require payment of interest to the estates of deceased members who 
had attained at least five (5) years of membership service as it does to such members who are alive. Nor does 
the statute preclude payment of interest. 

A failure to pay interest would unjustly enrich the System. A failure to pay interest would also place 
G.S. 135-5(f) into conflict with the Fifth and Fourteenth Amendments to the United States Constitution and 
Article I, Sec. 19 of the Constitution of North Carolina. This conflict can be avoided simply by concluding 
that G.S. 135-5(f) does not preclude the System from following the practice, standard among financial 
institutions, of paying interest for the use of other people's money. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Board of Trustees of the 
Teachers' and State Employees' Retirement System. 

This the 1 1th day of August, 1993. 



Thomas R. West 
Administrative Law Judge 



995 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF GASTON 



IN THE OFFICE OF 

ADIVUNISTRATTVE HEARINGS 

93 EHR 0219 



R. L. STOWE MILLS, INC., 
Petitioner, 



N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
DIVISION OF ENVIRONMENTAL MANAGEMENT, 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on July 6, 1993, in Charlotte, North Carolina, before Senior 
Administrative Law Judge Fred G. Morrison, Jr. The case was tried on stipulated facts and exhibits. Exhibits 
A through N were admitted into evidence. Following the hearing, the parties filed proposals for a 
recommended decision. 



APPEARANCES 



FOR THE PETITIONER: 



Christopher W. Loeb 
D. Blaine Sanders 
Robinson, Bradshaw & Hinson, 
Charlotte, North Carolina 



P.A. 



FOR THE RESPONDENT: 



Kathleen M. Waylett 

Assistant Attorney General 

North Carolina Department of Justice 

Raleigh, North Carolina 



ISSUE 

Whether Respondent's determination that Petitioner is not eligible for reimbursement of cleanup costs 
from the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund ("Fund") should be 
affirmed or reversed. 

STIPULATED FACTS 

1. Petitioner R.L. Stowe Mills, Inc. ("Stowe Mills") is a North Carolina corporation having its principal 
offices at 100 North Main Street, Belmont, North Carolina. Stowe Mills is engaged in the business 
of textile manufacturing. 

2. On October 26, 1987, Stowe Mills purchased the property ("Property") located at 116 North Main 
Street, Belmont, North Carolina as a real estate investment. Stowe Mills purchased the Property from 
Margaret Anderson, who acquired the property in 1980. 

3. At the time of the purchase, Harry Stone was operating Main Street Exxon, a gasoline service station, 
on the Property pursuant to an existing lease with Margaret Anderson. The lease continued after 
Stowe Mills' purchase of the property, and Mr. Stone paid rent to Stowe Mills under the terms of the 
existing lease. 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



996 



CONTESTED CASE DECISIONS 



4. At the time of Stowe Mills' purchase, three petroleum underground storage tanks were located on the 
Property. Two 4.000 gallon tanks were used for the storage and dispensing of motor fuel. One 550 
gallon tank was used for the storage of used oil. which was generated by auto repair done at the 
gasoline station. 

5. The tanks had been installed in 1961 by an unknown party. On April 22, 1986, Margaret Anderson 
registered the tanks with the Division of Environmental Management, listing herself as owner of the 
tanks. 

6. Stowe Mills is not in the business of selling gasoline and has never operated a gasoline service station. 
Stowe Mills has owned and operated other underground storage tanks at its various textile 
manufacturing facilities. 

7. On July 1 1 , 1989, Stowe Mills requested in writing that Harry Stone vacate the Property on or before 
the end of September 1989. After further discussion, it was agreed that Mr. Stone would stop selling 
gasoline, but could continue repairing cars on the Property until December 1989. Gasoline was not 
sold from the tanks, and the tanks remained empty, after July 1989. 

8. In October 1989, the Division of Environmental Management sent Margaret Anderson, as registered 
owner of the tanks, a Notification of Discrepancy in Underground Storage Tank Information form 
(undated) and attached Facility Data Sheet. The Notification and 

Facility Data Sheet were forwarded by Ms. Anderson to Stowe Mills, and were received by Stowe 
Mills in October 1989. 

9. On October 23, 1989, Stowe Mills returned to the Division of Envirormiental Management the 
corrected Notification of Discrepancy in Underground Storage Tank Information form, showing Stowe 
Mills as the "Present Owner", and the updated Facility Data Sheet, showing Stowe Mills as the 
facility owner. 

10. By letter dated October 23, 1989, Stowe Mills requested that payment of the 1989 tank fees be 
waived. 

11. The Division of Environmental Management received, but did not respond to, Stowe Mills' letter 
dated October 23, 1989. 

12. Stowe Mills" did not pay the annual fees for 1989 based upon its interpretation of the requirements 
for tanks taken out of service, the fact that it had sent to the Division of Environmental Management 
a request that the fees be waived, and the fact that no response was received. Stowe Mills did not 
know, prior to 1992, if its request for a waiver had, in fact, been received by the Division of 
Environmental Management. 

13. Stowe Mills did not follow-up in writing, telephone, or otherwise contact the Division of 
Environmental Management to discuss or inquire as to the status of its request for a waiver of the 
1989 tank fees. Stowe Mills was never told by the Division of Environmental Management that its 
request for a waiver had been allowed. 

14. At no time has the Division of Environmental Management had a system to grant waivers or allow 
for the nonpayment of tank fees. 



997 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



• 



I 



15. As of December 31, 1989, there were 25,000 billable facilities and 65,000 registered tanks on file 
with the Division of Environmental Management. The processing of registrations and the payment 
of tank fees were being handled by three full-time Division employees and two temporary employees. 
This fact was not known by Stowe Mills prior to the denial of reimbursement under the Commercial 
Leaking Petroleum Underground Storage Cleanup Trust Fund ("Fund") on January 9, 1993. 

16. On or about February 2, 1990, Stowe Mills, through a tank removal contractor, removed the tanks 
from the Property. Stowe Mills' contractor informed it that petroleum products had been released 
from one or more of the 4000 gallon gasoline tanks. The release was reported to the Division of 
Environmental Management in March or April 1990. There was no release of petroleum products 
from the used oil tank. 

17. At the time the release at the Property was discovered, no tank fees had been paid to the Fund by 
Stowe Mills. 

18. Stowe Mills has incurred significant costs in removing and disposing of the tanks, investigating the 
release, removing and disposing of soil affected by the release, reporting to the Division of 
Environmental Management and undertaking other work related to the tanks as required by the laws 
and rules governing underground storage tanks and the groundwaters of the State. Further large 
expenditures may be required to clean up groundwater affected by the release. 

19. Stowe Mills' environmental consultant, Atlantic Environmental Services, Inc., through Robert H. 
Pingry, requested a preliminary informal indication by the Division of Environmental Management 
whether Stowe Mills' costs incurred in the cleanup would be reimbursable from the Fund. 

20. In a letter dated January 28, 1992, the Division of Environmental Management, through George C. 
Matthis, Jr., Supervisor of the State Trust Fund Group, preliminarily indicated to Mr. Pingry that it 
would deny a request for reimbursement from the Fund based upon the agency's interpretation of 
G.S. §143-215. 94E(g), since the annual tank operating fees for 1989 had not been paid to the Fund 
prior to the discovery of the release. Stowe Mills argues that the agency's position was based on a 
rule which had not been adopted in accordance with the requirements of Chapter 150B of the General 
Statutes. 

21. By letter dated May 12, 1992, Stowe Mills paid the 1989 fees in the amount of $150.00. Stowe 
Mills' check in the amount of $150.00 was negotiated by the Division and the $150.00 retained. 
Thereafter annual operating tank fees for 1990 were paid. 

22. In October 1992, Stowe Mills submitted a formal application to the Division of Environmental 
Management for reimbursement from the Fund of cleanup costs. The Division of Environmental 
Management denied the application for reimbursement by letter (undated), which letter was received 
by Stowe Mills on or about January 9, 1993. 

23. The application for reimbursement was denied based upon the agency's construction of G.S. §143- 
215.94E(g) to prohibit reimbursement from the Fund when an annual tank fee due pursuant to G.S. 
§143-215. 94C had not been paid prior to the discovery of a release. Stowe Mills argues that the 
agency's action was based on its application of a rule which had not been adopted in accordance with 
the requirements of Chapter 150B of the General Statutes. 

24. The agency's construction of the statute is based upon its determination that the intent of the General 
Assembly in enacting Part 2A, Article 21A of Chapter 143 of the General Statutes, was to protect the 
environment by helping to finance expensive groundwater cleanups with a compulsory insurance fund 
financed by the General Fund and annual tank fees, and its further determination that the Fund cannot 
be successful if fees are paid only after the injury is discovered. 



8:11 NORTH CAROLINA REGISTER September 1, 1993 998 



CONTESTED CASE DECISIONS 



25. TTiere are no additional annual operating fees due with respect to the tanks in issue. 

26. Administrative rules promulgated to implement Part 2A, Article 21 A of Chapter 143 were not in 
effect when Stowe Mills' application for reimbursement was denied. Draft rules were published in 
the North Carolina Register on June 15, 1992, and final rules became effective February 1, 1993. 

27. The Division of Environmental Management has permitted parties to obtain reimbursement from the 
Fund when annual tank fees were paid late, but prior to the discovery of the release for which cleanup 
costs are sought. The Division of Environmental Management has never paid a reimbursement claim 
from the Fund where the information submitted by the claimant showed that the claimant paid past- 
due fees owed to the Fund after the discovery of the release from the tanks, except where it could be 
shown that the claimant had paid fees on other tanks for which fees should not have been paid, 
resulting in an overall credit to the claimant's account. 

28. Stowe Mills filed a timely Petition for Contested Case Hearing on February 22, 1993. 
Based on the foregoing Stipulated Facts, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

Respondent did not err by refusing to reimburse Petitioner. Respondent had notified Petitioner in 
October of 1989 that tank fees in the amount of $150.00 were due and payable. Petitioner assumed the risk 
by not forwarding payment at once, which could have included a protest, before the release was discovered 
in February of 1990. Requesting a waiver was a waiver of reimbursement rights until fees were paid. If 
Petitioner was not responsible for fees, it would not be eligible for reimbursement from the fund. 

A request for reimbursement was made by Petitioner's agent on January 14, 1992. Respondent 
promptly replied on January 28, 1992, that Petitioner would not be reimbursed because the 1989 tank fees 
had not been paid. Petitioner did not pay the 1989 fees until May 12, 1992, several months after being 
notified of the Respondent's decision, which also included the agency's position that the law required fees to 
be paid prior to the discovery or reporting of a discharge or release. 

Based on the foregoing Stipulated Facts and Conclusions of Law, the Administrative Law Judge makes 
the following: 

RECOMMENDED DECISION 

That the Respondent's decision to deny Petitioner's request for reimbursement be affirmed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 



999 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



I 



The agency that will make the final decision in this contested case is the North Carolina Department 
of Environment, Health, and Natural Resources. 

This the 1 1th day of August, 1993. 



Fred G. Morrison, Jr. 

Senior Administrative Law Judge 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



1000 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF WAKE 93 EHR 0380 



HOLDING BROS., INC., 
Petitioner, 



N.C. DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
Respondent. 



FINAL DECISION 



This matter came on for consideration before the undersigned Administrative Law Judge upon the 
Respondent's Motion to Dismiss filed July 21, 1993. The Petitioner filed no response. 

DISCUSSION 

The Petition alleges that the Notice of Violation (NOV) was issued erroneously to the Petitioner 
because the Petitioner did not own the Underground Storage Tank (UST) system. 

The Motion to Dismiss contends that the issuance of a NOV does not create any dispute whereby the 
Respondent has deprived the Petitioner of any property, ordered the Petitioner to pay a fine or civil penalty, 
or otherwise substantially prejudiced the Petitioner's rights. See 150B-23(a). 

A contested case is a proceeding to resolve a dispute between an agency and a person concerning the 
person's rights, duties or privileges. Rights, duties and privileges include licensing and the levying of a 
penalty. A petition, therefore, must contain allegations that the named agency, i.e., the Respondent, has 
deprived the person, i.e., the Petitioner, of property, has ordered him or her to pay a penalty, or has 
substantially prejudiced the person's rights. The Petition must describe how the agency deprived the person 
of rights, duties, or privileges. The agency must have exceeded its authority or jurisdiction, acted 
erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by 
law. 

A NOV and "method to comply" does present the Petitioner with a choice - to comply or to be 
penalized. However, this choice does not substantially prejudice the Petitioner's rights. If the Petitioner 
chooses not to comply and a penalty is imposed, the Petitioner may then appeal to the Office of Administrative 
Hearings. 

ORDER 

The Office of Administrative Hearings lacks subject matter jurisdiction over this contested case. The 
Petition is therefore, DISMISSED. This is FINAL DECISION pursuant to G.S. I50B-36(c). 



lOOI 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CONTESTED CASE DECISIONS 



NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior 
Court of Wake County or in the superior court of the county where the person resides. The Petition for 
Judicial Review must be filed within thirty (30) days after the person is served with a copy of the Final 
Decision. G.S. 150B-46 describes the contents of the Petition and requires service of the Petition on all 
parties. 



This the 3rd day of August, 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



1002 



XORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory: The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry' 


42 


25 


State Personnel 


Osteopathic Exammation & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






"Reserved" 


59 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech & Language Pathologists & Audiologists 


64 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1003 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



CUMULATIVE INDEX 



CUMULATIVE EVDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 

793 - 875 10 - August 

876 - 1006 II - September 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

N.C. State Fair, 506 
Plant Industry, 513 
Veterinary Division, 515 

COMMERCE 

Alcoholic Beverage Control Commission, 408, 711 

Banking Commission, 408, 798 

Cemetery Commission, 810 

Savings Institutions Division: Savings Institutions Commission, 461 

State Ports Authority, 8 1 1 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571, 962 

Comprehensive Conservation and Management Plan, 882 

Departmental Rules, 465 

Environmental Management, 210, 556, 658, 797, 893 

Health Services, 283, 335, 425, 465, 572, 709, 762, 966 

Marine Fisheries, 28, 568 

Mining: Mineral Resources, 829 

NPDES Permit, 710 

Soil and Water Conservation, 214 

Wildlife Resources Commission, 32, 663, 831, 965 



8:11 NORTH CAROLINA REGISTER September 1, 1993 1004 



CUMULATIVE INDEX 



Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460, 795, 880 d 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641, 793, 876 

HUMAN RESOURCES 

Aging, Division of, 815 

Blind, Services for the, 884 

Deaf and Hard of Hearing, Services for the, 650 

Facility Services, 94, 883 

Medical Assistance. 25, 414, 553, 712, 888 

Medical Care Commission, 644 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516 

Social Services Commission, 237, 733 

INSURANCE 

Actuarial Services, 555, 657 

Medical Database Commission, 463, 737 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252, 890 . 

Sheriffs' Education and Training Standards Commission, 738 I 

LABOR 

OSHA, 97, 231, 278. 892 

LICENSING BOARDS 

Architecture, 43 

Cosmetic Art Examiners, 969 

Dental Examiners, State Board of. 763 

Electrolysis Examiners. Board of. 841 

Foresters, Registration for, 674 

Geologists, Board of, 285 

Medical Examiners, Board of, 591 

Mortuary Science, Board of, 45. 342, 971 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners. 53, 767 

Plumbing, Heating and Fire Sprinkler Contractors. 360 

Practicing Psychologists. Board of. 844 

Real Estate Commission. 53. 364 

Social Work, Certification Board for. 428 



LIST OF RULES CODIFIED 

List of Rules Codified. 61, 290, 432, 593, 769, 845 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 



i 



1005 8:11 NORTH CAROLINA REGISTER September 1, 1993 



CUMULATIVE INDEX 



STATE PERSONNEL 

Office of State Personnel, 286, 972 

STATE TREASURER 

Retirement Systems, 337 

TAX REVIEW BOARD 

Orders of Tax Review, 503 

TRANSPORTATION 

Highways, Division of, 669, 836 



8:11 



NORTH CAROLINA REGISTER 



September 1, 1993 



1006 



i 



i 



NORTH CAROLINA ADMINISTRATIVE CODE 



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